A MANUAL OF THE LAW 


OF 

Loads and Highways 

in THE 


STATE OF KANSAS. 


■ WITH FORMS AND RECORD ENTRIES. 


XT v^ a ,: NINTH EDITION. 


By G. O. CLEMENS. 

Revised by the Author. 


Crane & Company, Publishers, 
Topeka, Kansas. 

1905. 













4 



A MANUAL OF THE LAW 


or 

Roads and Highways 

in THE 

STATE OF KANSAS. 


WITH FORMS AND RECORD ENTRIES. 


x^sv'w n 
v c. >? -07*.. 


NINTH EDITION. 


By G. 0. CLEMENS. 

Revised by the Author. 


Crane & Company, Publishers, 
Topeka, Kansab. 

1905 . 







LIBRARY o 1 CONGRESS, 
( wo Copies rfeewveu 

AUG 21 1905 

Couvrignt tiury 

CZu-t*. / ©, t Cf o£T 

CLASS **- AXc. 
/■Z3 S~YC, 

copy s. 

I 0j& ,v. 


Entered according to act of Congress, in the year 1885, by 
GEO. W. CRANE, 

In the office of the Librarian of Congress, at Washington. 


Copyright, 1895, by Crane & Co. 
Copyright, 1897, by Crane & Co. 
Copyright, 1901, by Crane & Co. 
Copyright, 1903, by Crane & Company. 
Copyright 1905, by Crane & Company. 



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PREFACE TO THE NINTH EDITION. 


When, twenty years ago, I put forth this manual, the 
Road Law was hut ten years old ; the Supreme Court had 
interpreted but little of it, and in advising my readers I 
had often to tread untrodden paths. The book has since 
been several times revised by other hands. This is my 
second revision ; and coming back now to my original text, 
which revisers have left untouched, I am gratified, as well 
as astonished, that I find so little to change of what I 
wrote eighteen years ago. I have, however, brought the 
book fully up to date, and I think I may say with confi¬ 
dence that all our statutory law concerning highways is to 
be found in this book. To the officers who have had to 
wait for this revision with what patience they were willing 
to manifest, I offer the single excuse that I am unwilling 
to have anything of the kind go out in my name that I am 
not satisfied is accurate and complete. 

The Road Law would not be chosen as a desirable liter¬ 
ary theme, but I believe I have become known to more 
people in Kansas through this unexciting manual than I 
could have become known to through the most thrilling 
romance. So this humble labor has its compensations. 

G. C. CLEMENS. 

Topeka, Kansas, July 15, 1C05. 







PART I 


INTERPRETATION OF ROAD LAWS.-COLLATED 
ROAD STATUTES. 




CONTENTS. 


PART I. 

Interpretation of Road Laws: 

What the Petitioners must Do. 9 

What the Commissioners are to Do. 15 

What the County Clerk is to Do.20 

What the Viewers are to Do.. v .21 

What the Land-Owner is to ' Do.84 

What the Road Overseer is to Do.86 

How to Contest a Road.48 

Abandonment of Roads.49 

^Collated Road Statutes...50 

PART II. 

Forms and Record Entries. 85 


( 7 ) 





















INTERPRETATION OF ROAD LAWS * 


I. 

WHAT THE PETITIONERS MUST DO. 

THE PETITION. 

Although power “to lay out, alter or discontinue any road” is 
given to the county commissioners in general terms (Gen. Stat. 1901, 
sec. 1621, subdivision 8), they have no authority to lay out, alter, 
nor vacate any road, unless a petition is presented to them by twelve 
householders of the county residing in the vicinity of the prpposed 
road. The board cannot act in the matter of its own motion. (18 
Kas. Rep. 386-396 ; 50 Kas. Rep. 635.) A householder is a person 
of full age, owning or occupying a house as a place of residence, and 
not as a boarder or lodger. (Gen. Stat. 1901, sec. 7342, subdivision 
25.) In short, a householder is an adult person, who keeps house as 
master or mistress of the house. One needs not to be married in 
order to be a householder (4 Kas. Rep. 120); and a single woman 
may be one as well as a man. The petition must describe the pro¬ 
posed road “with sufficient certainty to enable a practical surveyor 
to run it.” (59 Ind. Rep. 54; 73 Ind. Rep. 454.) “The description 
of a highway embraces its beginning, course, and termination. If 
in any of these particulars it is so uncertain that a practical surveyor 
cannot place it, the entire road fails.” (73 Ind. Rep. 455.) The 
county commissioners have no power to lay out the road unless it 
will be of public utility (section 6), and hence the petition should 
aver that the proposed road will be so. Printed petitions, with blanks 
for the descriptions, etc., can usually be had of the county clerk. The 
proper form for a petition is given in the latter part of this book. 
(See Forms and Record Entries.) 

It must appear in some way that the petitioners, or at least twelve 
of them, are householders, for this fact is jurisdictional and should 


♦When not otherwise Indicated, the references are to the sections following the heading, “Coi*- 
lated Road Statutes.” » 

( 9 ) 




10 


KANSAS ROAD LAWS. 


somewhere in the record be shown to exist before a view is ordered. 
If the record does not show this fact, the proceedings are void on 
their face if attacked by petition in error. (18 Kas. Rep. 132, 398.) 
But if the petition shows upon its face that twelve householders of 
the county are signers, the record will be good if it shows simply 
that the board made a finding “that the law had been substantially 
complied with.” (44 Kas. Rep. 558.) It need not state that any 
evidence was offered that the petitioners were householders. (Id.) 
Let it not be forgotten, however, that the fact itself must exist, or its 
non-existence may be proved and the order establishing the road be 
declared void. 

THE BOND.* 

One or more of the petitioners must give a bond, with sureties, to 
secure the expenses of the view, and this bond must be presented to 
the commissioners with the petition. (Section 1.) If the road shall 
be established by the commissioners, the county will pay all the ex¬ 
pense, and this bond will then amount to nothing ; but if the commis¬ 
sioners decide against the proposed road, then the bondsmen will 
have to pay the expenses of the proceedings, or be sued upon the bond. 
(Sections 1 and 6.) These expenses will amount to between ten and 
eighteen dollars a day during the time the viewers or commissioners 
are actually engaged in making the view, and there may be some 
other small items of expense. (See section 18.) A printed bond, 
with proper blanks, may be usually had of the county clerk. A form 
for it is given in the latter part of this book. 

PRESENTING PETITION. 

At the next regular session of the county commissioners, the peti¬ 
tion and bond should be presented to the board. If the board finds 
that the petition is signed by proper parties, householders, and 
enough of them — twelve,— and that the proposed road is so de¬ 
scribed that a practical surveyor could take the description and run it, 
and that the bond is good and in proper form, they will make an 
order appointing viewers, or deciding that the commissioners them¬ 
selves shall act as viewers, and directing the county clerk to give 
notice of the petition and view. (See “What the County Commis¬ 
sioners ARE TO DO, AND WHAT THE COUNTY CLERK IS TO DO.”) 

* Such a bond may now be given with a surety company as surety (Laws 1903, ch. 489); so that 
one’s neighbors need not be asked to incur uncertain liabilities. 




WHAT THE PETITIONERS MUST DO. 


11 


NOTICE TO LAND-OWNERS. 

At least six days before the time for the viewers to meet, the peti¬ 
tioners, or the principal petitioner, must serve notice of the time and 
place of the meeting of the commissioners or the viewers upon every 
owner of lands through which the road will run, who lives anywhere 
in the county, or has an agent living anywhere in the county; or if 
any of the lands are owned by a minor, an idiot, or an insane per¬ 
son, the notice must be served on that person’s guardian-, if there be 
a guardian living in the county. An “agent” means, in this statute, 
one who has authority to act in such matters ,— not merely an agent 
for any purpose. (26 Kas. Rep. 509.) If a land-owner does not 
live in the county, and has no agent living in the county and au¬ 
thorized to attend to such matters, no notice is to be served on him ; 
and if a minor, an idiot, or an insane person has no guardian living 
in the county, no notice can be legally served upon such person. The 
object of this notice is to enable the land-owner to apply to the 
viewers, or to the commissioners when acting as viewers, for 
the assessment of damages. (12 Kas. Rep. 531, 533.) But if a 
land-owner presents to the board of county commissioners a claim 
for damages to his land, want of notice to him is cured, and he can¬ 
not object to the road on that ground. (33 Kas. 34; 36 Kas. 664 : 
47 Kas. 402.) 

WHO IS A LAND-OWNER. 

The term land-owner in these proceedings has a wide meaning, 
and does not include merely the actual owner of the title to land, 
nor one who owns the land itself ; but includes every person having 
any rights connected with the land, and which may be affected by 
the location of the road through it. Thus, a tenant may have a nur¬ 
sery upon the very land the road will take ; and he would be a 
“land-owner” upon whom notice must be served. If there are sev¬ 
eral owners, as heirs, notice should be given to each. Notice should 
be given to both landlord and tenant. (49 Iowa Rep. 569.) The 
party giving a mortgage is still the owner — the mortgagee is not. 
(47 Kas. 355.) If a lawsuit is going on between two claimants of 
the land, both should have notice; and if the land should be in pos¬ 
session of a receiver, he should have notice. In short, the safe 
course will be for the petitioners to give notice to every one appear¬ 
ing to have any kind of interest in the land, leaving the viewers or 
commissioners to settle the question of right. A form for this notice 


12 


KANSAS ROAD LAWS. 


is given in the Forms and Eecord Entries. The principal petitioner 
must also give the surveyor six days’ notice. 

RELOCATING ROAD. 

If the true line of an established or public road has become doubt¬ 
ful or uncertain — the monuments or marked trees removed, for in¬ 
stance—it may be resurveyed under the direction of viewers, or, at 
their discretion, of the county commissioners acting as a board of 
viewers. But in such case, it is the old road that is to be found — 
the very road laid out — and the purpose is not to construe nor to 
correct the old survey. (20 Ohio State Hep. 180.) 

A petition signed by twelve householders is as necessary as in 
proceedings for laying out a new road, and unless such a petition is- 
presented, the whole proceeding for relocation will be void ; for with-, 
out such a petition the board of county commissioners has no power 
whatever to act. (34 Kas. Rep. 595.) But if the object is nothing 
more than to merely relocate the old road — not to alter it in any 
way; if the old road, just as it was laid out , is to be merely found 
and marked again, it will not be necessary to give notice to land- 
owners as if it were a proceeding to lay out a new road. (22 Ohio 
St. Rep. 180; 34 Kas. Rep. 595.) If anything more than this is in¬ 
tended, however, then notice of the view should be published and 
notices should be served on the land-owners precisely as in other pro¬ 
ceedings. (34 Kas. Rep. 595-603.) If the reader will refer to 
“What the Road Overseer is to Do,” he will perceive how im¬ 
portant relocation proceedings may become, and how often they may 
become necessary in a prairie country. 

A proceeding to relocate will not be barred by a previous refusal 
of the county board to establish a new road over the same line as if 
no road had ever been established there. (103 Indiana Rep. 48.) 

ROAD ON COUNTY OR CITY LINE. 

When a road is to be established on or along a county or city line, 
the proceedings are somewhat similar to those in other cases; the 
main difference consists in the joint action of the two boards and 
the two sets of viewers. (Sections 9, 10.) 

APPEAL FROM COUNTY COMISSIONERS. 

A land-owner may appeal from the decision of the county board, 
and he may take his appeal under either section 1640 or section 
6022 of the General Statutes of 1901, sec. 7 of Collated Road 


WHAT THE PETITIONERS MUST DO. 


13 


Statutes in this Manual. (18 Kas. Rep. 575.) But the appeal will 
not, in either case, bring before the district court the question of 
public utility, for that is an administrative, not a judicial, question. 
Only the question of the land-owner’s damages will be open on the 
appeal. (42 Kas. Rep. 534; 34 Alabama Rep. 461-464; 6 Indiana 
Rep. 237.) 

Of course, if the county board refuses a petition arbitrarily, and 
without exercising fair, honest judgment, the district court can fur¬ 
nish the petitioners a remedy. (Last clause of section 1923, Gen. 
Stat. 1901.) But an appeal to a jury in a district court upon this 
•question of discretion was certainly not contemplated by the legisla¬ 
ture. Neither, it has been held, can this question be determined 
upon a petition in error. (3 Mass. Rep. 406; 9 Gray [Mass.] Rep. 
57; 6 Cushing’s [Mass.] Rep. 306; 10 Mo. Rep. 679.) 

In awarding damages for the location of a county-line road, each 
board of county commissioners of the counties between which it is to 
be laid out acts separately; and an appeal from the award made by 
either board must be taken within thirty days after the order ap¬ 
pealed from, regardless of when final action is taken by the other 
board. (45 Kas. Rep. 442.) 

PETITION IN ERROR. 

Another way to have the proceedings reviewed by the district 
■court is by a “petition in error,” which will be fully enough ex¬ 
plained under the head, “How to Contest a Road; ” for this pro¬ 
ceeding may be used by either party. 

Whenever either an appeal or a proceeding in error is to be taken, 
the petitioners should at once consult counsel; for non-professional 
men can very easily make fatal mistakes in such proceedings. 

HOW THE NOTICE IS TO BE SERVED. 

The statute does not provide how the notice shall be served, and 
hence, it must be handed to the party personally; it cannot be left 
at his usual place of residence. (6 Rhode Island Rep. 255, 259; 1 
Curtis’s U. S. Circuit Ct. Rep. 437; 18 Barbour’s N. Y. Rep. 393 ; 
-25 Barbour’s Rep. 636, 646 ; 2 Jones’s [N. C.] Law Rep. 52 ; Wade 
on the Law of Notice, §§ 1334-1342.) Of course, if the land-owner 
appears before the viewers or the commissioners when acting as 
viewers, and claims his damages, it will be immaterial how the notice 
was served on him or whether it was served at all; for his appear- 


14 


KANSAS ROAD LAWS. 


ance waives all objections of that kind; (25 Kas. Rep. 517, 518;) 
and if he afterwards tiles with the county board his claim for dam¬ 
ages, that is a waiver of all defects in the notice. (33 Kas. Rep. 34; 
36 Kas. Rep. 664; 47 Kas. Rep. 402.) But as it cannot be cer¬ 
tainly known in advance that he will appear and waive objections, 
prudence requires that a strictly legal service shall always be made, 
or waived in writing. Since there can no longer be any doubt that 
a waiver of service is good in such cases, and as it tends to greatly 
facilitate the proceedings, a form of waiver has been inserted among 
the forms in the latter part of the present edition of this manual, to 
be used whenever the persons to be notified are amicably disposed, 
and thus make service of notice on them unnecessary. 

PROOF OF SERVICE OF NOTICE. 

The petitioner, or other person serving the notices to land-owners, 
must make out and preserve a true copy of each notice served, and 
must make an affidavit that he did serve it, when, and how, and file 
these copies and affidavits with the county clerk before the next 
meeting of the county board. (See Forms.) Until these are filed, 
the board of county commissioners cannot legally act concerning the 
road. (23 Kas. Rep. 732.) If written waivers of service have been 
taken from any persons, these should also be filed with the other 
proofs of service. 

ROAD ON SECTION LINE. 

If a road is to be located, changed, or relocated upon or along a 
section line, and the petition states the fact, and specifies the section 
lines to be followed, the place of beginning and the place of ending, 
the county commissioners may dispense with the survey; and if the 
owners of all the lands taken agree in writing to the proposed loca¬ 
tion, relocation or change, and the commissioners are satisfied that 
the location, relocation or change prayed for is practicable and can 
be made without unreasonable expense, a view may be also dispensed 
with. But in such a case the petitioners or signers must own all the 
land through which the road is to run; otherwise a view will be nec¬ 
essary to assess damages, even if but a single land-owner dissents. 
(8 Blackford’s Ind. Rep. 289.) 

The same proceedings are to be had upon a petition to alter and 
vacate a road as upon a petition to establish one; except that upon 
vacation of a road no damages are to be assessed. (10 Kas. Rep. 
95, 99, 100.) 


WHAT THE COMMISSIONERS ARE TO DO. 


15 


II. 

WHAT THE COMMISSIONERS ARE TO DO. 

ORDER FOR VIEW. 

When a road petition is presented to them for their action, the 
county commissioners are to see that a satisfactory bond in proper 
form has been filed ; and, if so, whether the petition is regular in 
form, and whether it properly and clearly describes the beginning, 
end and course of the proposed road ; and they should require the 
evidence of some one, either by an affidavit or by being sworn orally 
before them, that the signatures to the petition are genuine; that the 
petitioners live in the vicinity of the proposed road ; and that they 
are “householders.” What a householder is has been explained al¬ 
ready. (Pp. 9,10.) If the petition and bond are in proper form and 
satisfactory, the commissioners are to so decide, and unless they de¬ 
termine to act as viewers themselves, which they may do if they 
choose, they are to make an order appointing three householders of 
the county, who have no interest in the matter, to act as viewers. The 
order must fix a day for the commissioners or the viewers to meet, 
and direct the county clerk to give notice of the petition and of the 
day the commissioners or the viewers are to meet. The commis¬ 
sioners must also issue an order directing the county surveyor to 
meet with them or the viewers at the time fixed. The county sur¬ 
veyor must make the survey. (40 Ill. Rep. 522.) The time for the 
meeting of the commissioners or the viewers must be fixed at not 
more than twenty days after the date of the second publication in 
the newspaper, of the required notice. (Section 3.) How the record 
is to be made and entered will be explained when we come to 
“What the County Clerk is to do.” 

FAILURE OF VIEWERS TO MEET. 

If the commissioners or the viewers fail to meet at the time fixed, 
and also on the next day, a new order must be made, directing anew 
notice and fixing another time for the meeting of the commissioners 
or the viewers. (Section 3.) Failure of the commissioners or the 
viewers and the surveyor to meet at the appointed time, or on the 
next day, or on an adjourned day, invalidates whatever they may 
have done, or may do. No proceedings taken nor assessments made 


16 


KANSAS ROAD LAWS. 


by them after such failure can be valid. Their power ceases at once. 
(103 Ind. Rep. 575.) When the commissioners have decided to 
act or viewers have been once appointed, the county board has 
exhausted its powers for the time being. It cannot take another 
step of any kind until either the commissioners or the viewers file 
a certificate, or it is brought to the notice of the board, as a board, 
that the commissioners or the viewers have failed to meet. In the 
latter case, all the board can do is to fix another time of meeting, or 
make a new order to act as viewers, or appoint new viewers, and 
•order a new notice to be given. The board can do nothing at all 
but to keep on fixing new times of meeting, or making new orders to 
act as viewers or appointing new viewers and ordering new notices, 
until at last it gets a certificate filed by its members or by viewers ; 
then it can proceed with the case again, but not till then. (34 Kas. 
Rep. 556.) If a certificate is not made when it should be, the board 
should ascertain the reason; and if it finds nothing has been done, 
a new notice should be ordered, and a new order made that the 
commissioners shall act as viewers or that new viewers be appointed 
if that seems advisable. (34 Kas. Rep. 561.) 

ACTING UPON THE CERTIFICATE OF THE VIEWERS. 

When the commissioners or other viewers have filed their certif¬ 
icate, if it is favorable, the commissioners should see whether copies 
of the notices to land-owners, with the affidavits showing service, 
are on file; and if not, or if they are not regular in every way, the 
board should decline to proceed further until this requirement of the 
law has been complied with; for unless it is complied with, the com¬ 
missioners have no power to proceed. (23 Kas. Rep. 731, 732.) A 
land-owner may waive the six days’ notice, and if he actually pre¬ 
sents his claim for damages to the viewers, or to the commissioners 
acting as viewers, then it is immaterial whether the six days’ notice 
was actually served upon him or not. (33 Kas. 34; 36 Kas. 664; 
47 Kas. 402.) Of course, where that is so, the board of county com¬ 
missioners need not insist upon the filing of the notice and affidavit 
as to him. (25 Kas. Rep. 517, 518.) 

It is highly important, too, that the board should see to it that the 
county clerk has properly given the required notice in the proper 
manner and for the proper length of time; for if he has not done 
uo, the board has no jurisdiction to proceed; (19 Illinois Appellate 


WHAT THE COMMISSIONERS ARE TO DO. 


17 


Rep. 259 ;) and no matter how good the record may say the notice 
was, if none was in fact given, anybody interested may prove this 
afterwards, and the whole proceedings will fall. (32 Kas. Rep. 509 
and 555—557.) The statute does not require any proof before the 
board that this notice has been properly given, but provides only 
that the board shall cause a record of the notice to be entered on the 
journal. (32 Kas. 555-558.) The county commissioners are, how¬ 
ever, sworn officers, and are not expected to make a record which 
for aught they know may be a sheer falsehood. They are to see to 
it that the record they make is true. (43 Ohio St. Rep. 335; 66 
Iowa Rep. 414.) The notice to be given by the clerk is no mere 
idle form ; its object is that all persons interested may be heard 
before the viewers or the commissioners acting as such. (32 Kas. 
Rep. 557.) 

But if the notices have been properly given to the land-owners 
or waived by them ; if the copies of notices served and the affidavits 
of the service have been properly made and filed ; if the county clerk 
has properly given the notice required to be giypn; and if the pro¬ 
ceedings of the viewers themselves or of the commissioners acting 
as viewers seem to have been regular and valid, then the county 
commissioners are to consider whether the road should be established, 
altered, or vacated; (section 6;) and in doing so are to act as a 
court , and exercise a sound, sensible discretion. For even though 
the proceedings be all regular, and the certificate favorable, yet the 
petitioners are not, for these reasons, absolutely entitled to their 
road as a matter of right; but the board is to remember that the 
taxpayers all over the county are to help pay for the road, if granted, 
and is to use its own good judgment as the only protection those tax¬ 
payers can have in the proceedings. (47 Iowa Rep. 32.) In short, 
the commissioners are to deliberately and carefully balance the ex¬ 
pense of opening the road, on the one hand, against the benefit and 
advantage of the road to the public, on the other. (2*7 Kas. Rep. 
659-663.) The question for the board to decide is, not whether the 
road will be useful and advantageous to the petitioners merely, but 
whether it “will be of public utility”; (section 6 ;) for onl y public 
roads are to be made at the expense of the public. However, the 
law itself seems to imply that if a road is necessary or highly bene¬ 
ficial to twelve householders, it is of public utility ; (section 1;) for all 


—2 


18 


KANSAS ROAD LAWS. 


the proceedings are based upon that theory. So all that can be said, 
at last, is, that the commissioners are to exercise sound, liberal and 
honest judgment as to the usefulness of the proposed road. Part of 
the road cannot be laid out. All must be or none. (12 Connecticut 
Rep. 88-94.) 

ESTABLISHING KOAD. 

If they think the road will be of public utility, then—if the pro¬ 
ceedings have been regular and legal—they are to make an order 
directing that the certificate, survey and plat be recorded, and that 
order establishes the road; (1 Greene’s Iowa Rep. 439;) and the 
commissioners are then to issue an order requiring the trustees of 
the townships traversed by it to cause it to be opened to public 
travel. (Section 6.) 

BOARD MAT ADJOURN PROCEEDINGS. 

Of course the board is not compelled to act finally at the first 
meeting after the certificate is filed, but may adjourn the consideration 
of the matter as it may any other proceeding requiring the exercise 
of enlightened judgment. (12 Kas. Rep. 17-25.) It may, at the 
same session, reconsider its conclusion and continue the hearing to 
a future day during the same session. (39 Kas. 283.) But after 
the session closes, it cannot revoke its order opening the proposed 
road without a regular petition and proceedings as for vacating any 
other road. (50 Kas. 635.) 

REVISING ASSESSMENT OF DAMAGES. 

The next duty of the commissioners is to determine the amount of 
damages to land-owners; and this subject will be considered when 
we come to “What the Yiewers are to do.” (Section 7.) 

UNFAVORABLE ACTION. 

If the commissioners conclude that the road is unnecessary, the 
proceedings are at an end, upon the making of^the order by the com¬ 
missioners so declaring; and thereupon the bondsmen must pay the 
expenses that have accrued, or be sued upon their bond, unless, of 
course, the payment is suspended by an appeal or other proceedings. 
An appeal, however, from the decision in such a case can accomplish 
but little, if anything, for the petitioners, except additional expense; 
and it would be better, speedier, and perhaps cheaper, to begin over 


WHAT THE COMMISSIONERS ARE TO DO. 


19 


again. (See Forms and Record Entries for proper record entry upon 
unfavorable action.) 

The same proceedings are to be had upon a petition to alter or to 
vacate a road as if it were a petition to lay out a new one, except 
that, usually, no damages are allowed land-owners upon the vaca¬ 
tion of a highway. (10 Kas. Rep. 95, 99, 100.) 


20 


KANSAS ROAD LAWS. 


III. 

WHAT THE COUNTY CLERK IS TO HO. 

THE ROAD RECORD. 

By a statute already in force when the road law was pw.ed, the 
county clerk is required to keep a “road record.” This proviaion is 
section 49 of chapter 25 of the General Statutes of 1868, (Gen. 
Stat. 1901, sec. 1665,) and is as follows: 

“It shall be the duty of the county clerk to record in a proper book, to be called 
the ‘road record,’ a record of all proceedings in regard to laying out and establishing 
roads in the county, which said record shall include the report of the commissioners 
[viewers] and surveyor locating such roads, and maps thereof; and such records, or 
duly certified copies thereof, are hereby declared prima facie evidence of the state¬ 
ments therein contained, in the courts of this State.” 

The road law does not change this provision, except that the rec¬ 
ord of the notice to be given by the county clerk is to be entered on 
the journal. (Section 3.) It seems, therefore, that this notice 
should be recorded in both the journal and the “road record”; for 
it is evidently intended that the “ road record ” shall contain a com¬ 
plete history of all the road proceedings. 

RECORD ENTRIES. 

The clerk has nothing to do with the approval of the bond to be 
given by the petitioners. That is to be approved by the commis¬ 
sioners when the petition is presented to them. Except to file and 
preserve papers, the clerk has nothing to do with the matter until 
the commissioners act upon the petition. It is the usual custom, 
however, for the clerk to put in proper and legal form the orders 
and proceedings of the board ; and hence it is important that he 
should be prepared to make proper entries under the law. A com¬ 
plete set of entries to be made upon the record will be found in 
Forms and Record Entries ; and it may be of interest to county 
clerks that a “Road Record ” containing these entries, with blank 
spaces, so that little writing will be necessary to make up a com¬ 
plete record of each road, is prepared and sold by Crane & Co., 
blank book manufacturers, Topeka, Kansas. The “Road Record” 
entries are taken from the forms provided by the author to accom¬ 
pany this Manual, and a full set of notices, petitions, etc., corre¬ 
sponding with the author’s forms and with the “Road Record,” is 
also published by the same firm. 


WHAT THE VIEWERS ARE TO DO. 


21 


IV. 

WHAT THE VIEWERS ARE TO DO.* 

SHOULD LISTEN TO ALL PARTIES. 

The viewers or the commissioners when acting as viewers are not 
simply to assess damages, but to listen fairly to all persons inter¬ 
ested who come before them to oppose or advocate the road, and to 
come to an honest and reasonable conclusion just as a court would be 
expected to do. When the commissioners do not themselves act as 
viewers, the viewers are to the board what a referee is to a court. 
When the county commissioners do not themselves go out and ex¬ 
amine the road proposed, the law has provided for these viewers to 
go out in their stead and investigate thoroughly, so they can tell the 
commissioners what they have found out about the matter, and aid 
the board with their advisory opinion, based upon what they have 
seen and heard. In short, the viewers are assistants of the board — 
they are to be the eyes and ears of the commissioners. To illustrate : 
Suppose a dozen of us have some thoughts of purchasing a distant 
business — a mine or something of that sort — but we wish to have 
some reliable information about it before we invest, for, so far, we 
have had all our information from the parties desiring to sell. We 
meet together and agree to send three of our members to examine 
into the matter and report to us what they find out, and to give us 
their honest opinion whether we should buy or not. Now these 
three men would be our “viewers,” and what we should expect of 
them , is precisely what the law authorizes the county commissioners 
to expect of their “viewers,” so far as concerns the question whether 
the road should be laid out or not. The certificate should give the 
board full information as to all good reasons urged by people for or 
against the road, so that the commissioners may sit down and use 
their own judgment on all the circumstances. The viewers are to 
give their opinion, and the commissioners are to respect it, and to 
even rely upon it in case of serious doubt; but at the same time, the 

* Under sec. 3, ch. 411, Laws of 1903 ( sec. 6 of Collated Road Statutes ), although the surveyor is re¬ 
quired to meet with the commissioners or the viewers, he is to survey and mark the road only in case 
they shall so direct after first viewing the proposed road. This seems to require a preliminary view 
without the surveyor’s assistance, although he must attend. 



22 


KANSAS KOAD LAWS. 


certificate should be so full and so fair that the commissioners may 
be able to come to their own conclusion from what it states. No 
viewer should be so proud and vain of his opinion as to care for a 
moment whether the commissioners agree with him or not. He is 
simply to use his honest judgment, and then state all the facts in 
such a way that “the other side” may have every opportunity to 
convince the board that he is wrong. That is honest and fair, and 
he is simply doing to others as, under like circumstances, he would 
have others do to him. 

In order to be thus fair, the viewers, or the commissioners when 
they act as viewers, should not “hurry.” They are there to listen, 
and they should do it patiently, attentively, and courteously. They 
should remember that farmers are not all college-bred, and that the 
majority of them are neither logical nor practical men of affairs. 
They must learn, what all lawyers have to learn, that very few men 
can go straight on with their stories, and that it saves time in the end 
to let most of them go right on in their own way till they get through. 
It is not likely that any man will come before them to say anything 
about the matter unless he has some reason that, to him , seems a 
good one, why the road should or should not be laid out; and it is 
but simple justice that they shall endeavor to find out from his “talk ” 
what that reason is, and then consider it, and give it whatever weight 
it deserves. If viewers or commissioners were always to act thus 
fairly and courteously, every man would feel that he had had a fair 
hearing, and would have confidence that the viewers or commis¬ 
sioners would do what was right, and, as a result, a contest would 
be a rare occurrence. Every man likes to be treated as if he were 
somebody. No man likes to be “snubbed.” Let the commissioners 
and the viewers remember that they are to stand impartial between 
those who do and those who do not want the road ; and that they 
are to consider “the utility, convenience, and inconvenience, and ex¬ 
pense, which will result to individuals , as well as to the public,” if 
the road should be established. (Section 5.) 

ASSESSING DAMAGES. 

But, while this is one of the duties of the viewers, or the commis¬ 
sioners acting as viewers, it is not the only one. They are also to 
“assess and determine the amount of damages sustained by any per¬ 
son or persons through whose premises the said road is proposed to 


WHAT THE VIEWERS ARE TO DO. 


23 


be established” (Section 5); and here again they are to act as im¬ 
partial arbitrators between the taxpayers of the county and the land- 
owners damaged by the proposed road. They are to so judge that 
no land-owner shall lose anything, nor gain any profit at the expense 
of the taxpayers of the county. The viewers are to make an actual 
estimate of each man’s damages according to legal rules; they are 
not to guess at the amount, nor “lump” it; but they are to sit down 
and figure it out according to established rules. (19 Neb. Rep. 
289.) If a land-owner appeals, as he may, to the district court, 
the jury will be required to estimate the damages by items in dollars 
and cents, and to judge of the benefits to be set off in the same cool, 
methodical way; and why, then, should not the viewers and the 
commissioners act precisely in the same way, and upon the very 
same principles as if they were sitting as a jury in the district court 
under the court’s instructions? It must come to that at last, and the 
capricious estimates of the commissioners or viewers only serve to 
exasperate men to appeal, and burden the taxpayers with the costs 
such folly and hardheartedness incur. Everything has been settled 
as to these matters, and we shall now see how the viewers and the 
commissioners are to go about the assessment of damages. 

First , They are to set off against the damages to any one any 
direct, peculiar benefit his land will derive from the road. What is 
to be considered such a benefit will be stated presently. If the 
benefits equal the amount of' damages, then no damages are to be 
allowed. (85 Missouri Rep. 637.) If the benefits are less, then 
the difference only is to be allowed. 

Second , The public does not become the owner of the land over 
which the road runs ; it acquires only a right to use it for the pur¬ 
poses of travel. The land still belongs to the former owner, and if 
the road should ever be vacated, he has the land as fully as ever. 
The public takes nothing except what is actually necessary to make 
the road a good and sufficient thoroughfare for public travel; so that 
the trees, grass, hedges, fences, buildings, mines, quarries, springs, 
watercourses, and in short everything connected with the land over 
which the road is laid out, and not actually necessary to the road as 
a road , still belongs to the owner of the land, and the public gets no 
right to such things. He may remove all these things, or use them, 
or any of them, in any manner he chooses, provided that in so doing 


24 


KANSAS JROAD LAWS. 


lie does not interfere with the use of the road as a public highway. 
This is the only restriction upon his right to these things, or to their 
use, after the road is laid out. (10 Kas. Rep. 607; 21 Kas. Rep. 
247.) So the owner is not necessarily entitled to the full value of 
the land over which the road runs; for there may be trees and the 
like upon it, which are still his, and which may be worth money. 
It would be better, however, and would come nearer exact justice, 
to make a sort of debit and credit account of the whole matter, and 
strike a balance ; and so, in the first instance, the land taken should 
be measured, or estimated in acres, and the full actual value should 
be set down to the owner’s credit as “apparent damages”; and 
whatever will still be left to him after the land is taken and paid for, 
and which has a money value, can be set down as “ set-offs to ap¬ 
parent damages,”—and the whole thing will be thus equalized. 

Third , The elements which go to make up the owner’s damages 
are as follows: 

( a ) The cdst of removing a fence, so as to set it back off of the 
road. (17 Kas. Rep. 59.) 

(5) If the road cuts the land in two, so as to require an additional 
fence, or if for any reason the road makes a new fence necessary, he 
is entitled to what it will cost to build it; and he ought not to be 
stinted, but should be allowed all the fence will actually cost. (20 
Kas. Rep. 16; 10 Kas. Rep. 608.) Where a road crosses a railroad 
company’s right of way, the company is entitled to just compensa¬ 
tion for all its necessary expenditures in constructing cattle-guards 
and such other things as are required by the statutes to be constructed 
by it by reason of the existence of the highway. (45 Kas. Rep. 716; 
46 id. 104; 48 id. 576; 49 id. 763.) 

(<?) The injury to the rest of the property by cutting off a part. 
(17 Kas. Rep. 60.) And the injury to the whole tract is to be con¬ 
sidered, not merely to the immediate part of it. As, for instance, if 
a large tract is used for a stock ranch, and it is cut up and rendered 
less convenient, this injury is to be taken into consideration. (25 
Kas. Rep. 421.) In short, any reasonable probable inconvenience, 
whether present or prospective, should be taken into consideration 
in the assessment of damages. (24 Kas. Rep. 745 ; 10 Kas. Rep. 439.) 

Thus, in a case in New York, a proposed road ran over the grave 
of one who had been buried there more than fifty years before; and 


WHAT THE VIEWERS ARE TO DO. 


25 


it was decided that the next of kin was entitled as damages to be in¬ 
demnified for what removal and suitable interment of his ancestor’s 
remains would cost. (4 Bradford’s N. Y. Rep. 503.) 

But there is a class of injuries which cannot be accurately esti¬ 
mated; the injury is clear enough, but it is impossible to tell how 
much, in dollars and cents, the party is damaged by it. Damages 
arising from injuries of this character are, in law, called “specula¬ 
tive” damages—that is damages computed by mere guess — and are 
never allowed, because there is no way in which they can be figured 
out. (39 Barbour’s N. Y. Rep. 266.) Thus, where a jury allowed 
damages to a party for the exposure of his orchard to thefts by 
tramps and others passing along a railroad running through his land, 
the Supreme Court decided that no such damages could be allowed, 
because, necessarily, they were sheer guess-work. (32 Kas. Rep. 609 ; 
19 Neb. Rep. 289.) 

The safest test in assessing damages for any particular alleged 
injury, is to see whether any amount can be actually arrived at by 
calculation. Thus, a land-owner says: “That road will run between 
my house and my barn, which will be a great injury to my place.” 
“Very well,” say the viewers; “how much in money will that in¬ 
jury amount to? ” “Five hundred dollars, at least! ” says the land- 
owner. The'viewers take out their pencils, and say: “Now, give us 
the items that make up that amount, so we can figure it out. You 
know, we can’t guess at it, nor ‘lump’ it, but we must be able to 
state just how we settled on that particular amount, so the district 
court, if the matter should go there, can see whether we have allowed 
you enough or too much.” He may tell what new fences will cost; 
but when he is asked to coolly calculate, on some sound basis, the 
present amount of injury arising from the mere fact that his house 
and barn are henceforth to be upon opposite sides of a public road, 
he will have a puzzle which it is not at all likely he can solve. All 
can see that it may be undesirable to have the road there, and all 
may even admit that its location is an actual injury; yet it is one of 
those injuries that cannot be accurately expressed in dollars and 
cents. The object of giving a land-owner damages is, to enable him 
to place himself in as good a pecuniary position as he would have 
been in if there had been no road laid out. With the money allowed 
him for a new fence, he can get a new fence and his injury is 



26 


KANSAS K0AD LAWS. 


healed; but if you give a thousand dollars damages for having his 
house and barn on opposite sides of the road, he cannot take that 
thousand dollars and move either his farm or the road. He can, 
however, move his barn or his house, and here comes in an element 
of damages that can be understood. The injury of having a road 
between his house and his barn can be estimated only by estimating 
the expense of moving the house or the barn to the other side of the 
road, and the additional expense of repairing the injury consequent 
upon the removal. So, in every case where damages are claimed 
for an injury, and the injury is a real one, the viewers should reflect 
by what means the injury can be repaired, and then what those 
means would probably cost; and this amount will be the damages 
from that particular injury. 

(d) In addition to all these items, the viewers should ascertain 
the precise amount of the party’s land embraced in the road, and 
allow him for this at its fair value per acre. 

OPINIONS AS TO DAMAGES. 

The opinions of witnesses as to how much a party is damaged are 
not good evidence; for, as before stated, the damage is not a mere 
matter of opinion, but of calculation / and, of course, as the whole 
matter may come before a court at last, the viewers ought not to 
base their assessment upon anything but legal grounds. Why shall 
not the viewers seek to decide according to law in the first instance , 
and thus render an appeal and revision unnecessary in order to give 
a party justice? Opinions as to the amount of damages are not 
legal evidence, and ought not to be relied upon. (21 Kas. Kep. 253.) 

BENEFITS AS OFFSETS TO DAMAGES. 

When all the elements of damage have thus been ascertained, 
and the total amount footed up, the viewers should next determine 
what benefits, if any, the claimant’s land will derive from the con¬ 
struction of the road, and deduct the amount of these from the total 
amount of damages. Here, too, the same cold rule must be applied, 
and mere fancy must not be indulged. Unless a benefit is worth so 
much in dollars and cents, so as to be capable of rational computa¬ 
tion, it is a purely “speculative,” fanciful benefit, and cannot be 
taken into account any more than can a “speculative” injury. 

Before any benefit can be considered at all by the viewers, it 


WHAT THE VIEWERS ARE TO DO. 


27 


must be clear that it is one which the particular claimant alone will 
enjoy. The advantage of having a public road in his vicinity is one 
common to the whole community; it is a public advantage; and 
the claimant pays in taxes for all public conveniences. (17 Kas. Rep. 
59.) Neither is the increase in the market value of the land because 
of the road to be considered; for however much of a benefit this 
may be to the owner , it confers no benefit upon the land itself. In 
short, the only benefits which can be properly considered are such 
as add to the usefulness or convenience of the land as land —not to 
its market value, but to its value for use (21 Kas. Rep. 252; 27 
Kas. Rep. 391-393), and which are, at the same time, peculiar to 
the particular tract of land — not common to all the lands in the 
neighborhood. (17 Kas. Rep. 58; 21 Kas. Rep. 247; 27 Kas. 
Rep. 391-393.) 

Thus, if a stream on the land will be bridged by the road; if the 
land will be drained; or if any similar improvement of this kind 
will result from the laying out and opening of the road, these im¬ 
provements may be properly considered. (21 Kas. Rep. 252.) In 
the language of the Supreme Court, the benefit to be considered, 
must be “something which affects the land itself, directly and 
proximately;” “something which increases the actual or usable 
value of the land, as well as the market or salable value thereof, and 
not such as increases merely the market or salable value alone.” It 
must be something which gives increased value to “the use of the 
land as land ” to be used — not to be sold, merely. The benefits 
must be “such as are direct, certain and proximate, and not such as 
are indirect, contingent, or remote.” (21 Kas. Rep. 247-252.) 

LAND-OWNER MUST MAKE WRITTEN APPLICATION. 

The viewers have no right nor power to assess damages in favor 
of anyone who does not make his application in writing , giving a 
description of his land, etc. Though the land-owner may come be¬ 
fore the viewers, and personally demand the assessment of his dam¬ 
ages, the demand cannot be heeded. He must make a regular, 
written application or the viewers are powerless to consider his 
claim. (24 Ohio St. Rep. 467-471.) But it is no more than com¬ 
mon honesty that the viewers should tell him this in time, and not 
leave him to find out afterward that he has lost his claim through 
ignorance of the law. In short, viewers should, in all they do, 


28 


KANSAS ROAD LAWS. 


remember that ignorance of the law is very usual, and that it be¬ 
comes no gentleman nor honest man to make that ignorance in 
another the cause of suffering or loss. It will be seen, presently, 
that nothing whatever will excuse the land-owner’s failure to make 
his written application to the viewers. If he does not present it, he 
is forever barred from claiming compensation. 

INTEKEST OF APPLICANT FOR DAMAGES. 

Supposing a proper application to have been made, the next ques¬ 
tion will be, What interest has the applicant in the land? • For al¬ 
though he may be in possession, yet if he has no right to the land, 
as, if it should be Government land upon which he is a mere 
“squatter,” he cannot be allowed any damages for injury to it. (18 
Kas. Eep. 124-128.) Each claimant is entitled to damages only 
to the extent of his own interest in the land. If there are several 
owners, each is entitled to only the damage to his share. (18 Kas. 
Kep. 128.) If one man owns the land and another the crops, the 
land-owner is not entitled to any compensation for damage to the 
crops, nor is the owner of the crops entitled to any assessment of 
damages as to the land. (18 Kas. Rep. 128.) And in such cases, 
each party interested must make his own written application ; if one 
applies and the other does not, the viewers can assess damages in 
favor of only the one who applies, and only as to his own interest. 
One in possession of land under a bond for a deed, however, is con¬ 
sidered as the owner of the land in these proceedings, and he alone 
is entitled to the damages. (15 Kas. Rep. 42T; 17 Kas. Rep. 240- 
246.) 

No damages can ordinarily be allowed any one upon the vacation 
of a road. (10 Kas. Rep. 95, 99, 100.) 

A SUGGESTION. 

When it is remembered that almost every question that can 
arise in these proceedings, however puzzling it may seem, has 
been decided by the Supreme Court of some State, and that our 
own Supreme Court is constantly deciding new questions 
under our own road law; and that matters not yet thought of, 
and not mentioned at all in this nor any other book, may at any 
time be thus brought up and decided; and when it is further 
remembered that although commissioners or road viewers can rarely 
ever be thoroughly posted lawyers, yet their proceedings may at 


WHAT THE VIEWERS ARE TO DO. 


29 


any time be subjected to the severest judicial scrutiny, and if found 
void or defective, or contrary to some decision of the Supreme Court, 
may result in the most serious injury to the people immediately in¬ 
terested, as well as to the county, it is obvious that upon the question 
of damages the viewers should have the assistance of zealous coun¬ 
sel who will reason out these questions, and hunt up and show to the 
viewers every decision that has been made anywhere upon the mat¬ 
ters to be decided. The viewers have no authority to employ advisory 
counsel, and even if they had, such counsel would be of little use,— 
for the matter would be of very little interest to him. But if each 
claimant of damages were to employ counsel to advocate his claim 
before the viewers, such counsel would be zealous in looking up and 
thoroughly studying that ■particular claim , and would, if honest in 
his profession, present to the viewers every reason and every decision 
in favor of that claim; and thus every claim for damages would be 
so fully presented by personal zeal and industry that the viewers 
would be as fully informed, and as capable of deciding legally and 
justly, as any court; for this is the very way in which judges are 
instructed as to each case that comes before them. It is clear, how¬ 
ever, that if claimants were to employ counsel to leave their offices 
shut up, and go out miles into the country to present their cases 
while the viewers were there on the ground, the expense would be 
burdensome, and besides, the distance from law books would 
make the lawyer’s mere “talk ”of little real assistance to the viewers. 
Is not the following, then, a good suggestion ? Let the viewers or 
commissioners, as each application for damages is handed them, or, 
by a general notice to land-owners, inform the claimants that on a 
certain day, at a designated place, the viewers will sit at the county 
seat for the purpose of hearing arguments by counsel in favor of all 
claimants who choose to have their claims so presented ; and suggest 
to the claimants that several of them may club together and employ 
counsel at little expense to each claimant; and that the viewers or 
commissioners are perfectly willing and desirous to hear argument; 
then, at the appointed time and place — perhaps at the court¬ 
house, or in some law office — the viewers or commissioners 
could sit precisely as a court. If, during counsel’s argument, 
any viewer or commissioner wished information as to any partic¬ 
ular question that ocurred to him, he could request counsel to 


30 


KANSAS ROAD LAWS. 


discuss that question in his argument; and thus the viewers or 
commissioners could rest secure that they had gathered all the 
information possible upon the question of damages; and after 
the discussion, could, upon private consultation, decide upon the 
amount of damages to be awarded to each claimant. Such a 
proceeding would be perfectly valid ; for the viewers are not re¬ 
quired to decide upon their certificate at the very time of the view 
and survey ; but the view is for the same purpose .as a view of prem¬ 
ises by a jury during a trial in court: it is to enable the viewers to 
judge more intelligently of the matters to be decided. The certifi¬ 
cate may be made at any time “on or before the first day” of the 
next session of the county commissioners. (Section 6.) And it has 
been expressly decided that the viewers may adjourn to meet at 
another time, and that even after they have already agreed upon 
their certificate, they may change it, and even certify the other way. 
Until their certificate is filed with the county clerk, they have com¬ 
plete control over it. (17 Ohio Kep. 101-104.) Besides, a mere 
view will not teach them who owns this or that tract of land, nor 
what it will cost to move a fence or to build one; nor. even the value 
of land in that vicinity. The law requires these things to be consid¬ 
ered by the viewers, and there must be some lawful means for secur¬ 
ing reliable information ; and as the certificate of the viewers will, 
on appeal, be examined in the light of the strict rules of law, it seems 
that the viewers should, in the first instance, be entitled to have the 
means of making a strictly legal assessment, with a full knowledge 
of all the circumstances. But, let the reader remember that this is 
but the suggestion of the author of this book; it has not been de¬ 
cided to be valid ; and although the author has little doubt about 
the propriety of his suggestion,' his readers must use their own judg¬ 
ment as to accepting it. 

DECIDING UPON CERTIFICATE. 

The viewers or commissioners, having estimated all the damages 
that will have to be paid by the county if the road should be estab¬ 
lished, and having carefully considered the importance of the road, 
must decide whether, in view of the expense, the road is needed 
badly enough by the public to justify its establishment. But the 
public importance of a road does not depend upon whether the whole 
county will actually travel it. It may be of public utility although 


WHAT THE VIEWERS ABE TO DO. 


31 


it serves, principally, only to give one man a chance to get to town 
over a public highway. “The state is not bound to allow the citi¬ 
zens to be walled in, insulated, imprisoned ; but may provide them 
a way of deliverance” (25 Iowa Rep. 546, 547); and “the fact that 
a road has no outlet or egress at one end, and that it primarily and 
principally benefits a single individual, does not destroy its character 
as a public highway, nor prevent the public from taking private 
property for it.” (12 Kas. Rep. 17-25.) What is a road of “public 
utility”? Simply a road required for public convenience / it need 
not be absolutely necessary to the public ; but it is of “public utility ” 
if it will be generally useful and convenient to have such a road. 
(86 Ind. Rep. 68.) By usefulness to the public we are not to under¬ 
stand that everybody needs the particular highway as a means of 
universal travel, but whether it will be useful to the community to 
have a road over which a few people, or even one person, can reach 
a school, a voting place, the county seat, or the like. The public 
wants men to serve on juries, to testify in courts as witnesses, to 
vote, to get and send letters, public notices and newspapers, and to 
send their children to school and their products and wares to a ready 
market; and hence, a road enabling citizens to do these things, 
although it serves this purpose as to but a very few, or as to only one 
person, is so far of utility to the public, which needs to have its citi¬ 
zens take part in public affairs, grow intelligent and engage in traffic. 
The question is not how many people will likely travel the road, but 
whether it will be beneficial to the public to have the people who 
will travel it be able to get away from home for public or commer¬ 
cial purposes. However, even if the road be of such public utility 
as to justify the necessary expense to the county if established, it 
still does not follow that the viewers should make a favorable re¬ 
port ; for they are to consider the inconvenience it may cause to 
land-owners, and for which they cannot be entirely compensated by 
the damages to be paid. The road as'prayed for may run through 
a beautiful grove, or park, or pleasure-ground planted or laid out 
many years ago, and dear to a family from its past associations ; it 
may traverse the graves of the dead; or, in many a way, it may 
break in harshly upon memories, pleasures, or laudable tastes of 
citizens in such a manner that sordid dollars and c,ents can afford no 
compensation for the wounded hearts or thwarted tastes; and the 


32 


KANSAS ROAD LAWS. 


statute requires the viewers to consider all these things. The ques¬ 
tion for the viewers to decide is, not whether a road is necessary, but 
whether the particular road “as prayed for” is so far necessary as to 
justify, not only the expense to the county, but the inconvenience to 
private citizens; for if a road be necessary, yet if one could be laid 
out just as well without so much expense, or with less inconvenience 
to private citizens, while the particular road proposed will be much 
more expensive, or will put some land-owner to great inconvenience 
or annoyance, the viewers should unquestionably decide against the 
proposed road. In short, the viewers are to consider three things : 
the benefit the road will be to the public, the expense it will be to 
the county, and the inconvenience or annoyance .it will cause to 
particular persons. But public necessity is supreme, and if the public 
necessity cannot be supplied in any other way than by the very road 
proposed, then the expense to. the county and the inconvenience to 
private persons cannot stand in the way of establishing that road. 

PREPARATION, FORM AND FILING OF CERTIFICATES. 

When the viewers have heard all parties interested who have ap¬ 
peared before them, assessed all the damages properly applied for, 
and fully made up their minds whether they will certify for or against 
the proposed road, their next and final duty is to draw up their cer¬ 
tificate, sign it, and file it with the county clerk on or before the first 
day of the session of the board of county commissioners then next 
ensuing. The certificate may be signed by two of the viewers, if the 
third does not agree to it, or does not choose to sign it. (8 Kas. 
Rep. 258.) Usually, and perhaps properly, the certificate recites that 
the viewers have viewed the road, caused a survey to be made, etc.; 
but the statute requires, in terms, no more of the viewers than “a 
certificate stating their opinion in favor of or against the establish¬ 
ment, alteration or vacation of said road or any part thereof,” and 
that they shall “set forth the reason of the same.” (Section 6.) The 
Supreme Court has decided that “no elaborate presentation of rea¬ 
sons pro and con is required,” and that a report which simply says 
that the proposed road “is practicable,” and that the viewers “recom¬ 
mend its adoption,” is sufficient (8 Kas. Rep. 259); but it was not 
altogether necessary for the court to decide this in the particular 
case, and it is not at all unlikely that when it does become necess’ary, 
the court will say such a decision was wrong; for it violates both the 


WHAT THE VIEWERS ARE TO DO. 


33 


letter and spirit of the law. The law plainly requires, in so many 
words, that the viewers shall “set forth the reason of” their opinion ; 
and to say that the road is “practicable” is surely not setting forth 
i much of a reason why private property should be confiscated for it, 
or the taxpayers of the county burdened with the expense of estab¬ 
lishing it! It is “practicable ” to lay out two roads side by side, yet 
there may be some doubt as to the public necessity for doing so. 
Neither is it a reason for the viewers to say they “recommend” the 
road; for that is no more than a favorable opinion — it is no reason 
for an opinion. It has been decided in Ohio, too, under a similar 
law, that unless the certificate states that the road will be of public 
utility, the commissioners have no power to establish it. (35 Ohio 
State Rep. 445.) It would be better to err on the safe side, and set 
forth substantial reasons for recommending the road. 

The viewers must fix the width of the road. If they fail to do so, 
all their proceedings must go for nothing. “ The width of all county 
roads shall be determined by the viewers at the time of establishing 
the same, and shall not be more than eighty nor less than forty feet; ” 
but to avoid injury to a growing hedge or other permanent improve¬ 
ment, the removal of which would cause too great an expense, the 
width may be as low as thirty feet. (Collated Road Statutes, Sec. 
11.) If the width is not fixed by the viewers, the whole proceedings 
are void. (5 Blackford’s Ind. Rep. 462; 8 Blackford’s Rep. 208; 
9 Indiana Rep. 103; 112 Pennsylvania St. Rep. 212.)* 


* But see 13 Kan. 258, decided under the old statute, that width would be forty feet. 


-3 



34 


KANSAS KOAD LAWS. 


V. • 

WHAT THE LAND-OWNER IS TO DO. 

APPLICATION TO VIEWERS. 

If a land-owner lives in the county, or has an agent living in it, 
and no notice has been served upon him or his agent by the petition¬ 
ers, he should, if he desires to contest the road, pay no attention 
whatever to the proceedings ; for if he ignores them, the road cannot 
as to him become legally established. (23 Kas. Rep. 731, 732.) If 
he has no desire to contest the road, he can present his claim for dam¬ 
ages to the viewers, the same as if he had received notice; for the 
notice is for his benefit, and he may waive it if he chooses. (13 
Kas. Rep. 265; 25 Kas. Rep. 517.) If notice has been properly 
served upon him, then he has no choice, but must present his claim 
to the viewers, or be forever barred from claiming any compensation 
if the road should be established through his land. How strict this 
requirement is, may be seen from the following case decided by our 
Supreme Court: u On the morning of the day appointed, the plain¬ 
tiff, who lived about five miles from where the viewers were to meet, 
prepared his claim for damages, had his horse saddled and at the 
door to carry him to the place of meeting of the viewers in time to 
have met the viewers and present his said claim, and intended so to 
do; that his mother, a resident of his family, was taken suddenly 
and dangerously ill with a congestive chill, which in a few days 
terminated in death ; that plaintiff was called upon and stopped 
from meeting with said viewers to be with his mother in her illness, 
was with her, at her bedside attending upon her, and that had it not 
been for his mother’s illness, as stated, he would have presented his 
claim for damages to the said viewers, and said Viewers would have 
allowed plaintiff his damages and reported favorably on laying out 
said road; that plaintiff appeared before the defendants (county 
commissioners), before they had acted on the report of the said 
viewers, and presented his claim for damages in writing, and made 
known to them the above facts.” The county admitted all this to be 
exactly true; yet the Supreme Court decided that no damages could 
be allowed, because the plaintiff had not presented his claim to the 


WHAT THE LAND-OWNER IS TO DO. 


35 


viewers; that nothing will be an excuse under the statute. “No 
exception is named in the statute; no authority is given to the courts 
to declare one.” (13 Kas. Rep. 146 ; 25 Illinois Rep. 518.) 

The application to the viewers for assessment of damages must be 
written or printed, and must describe the premises. Unless thus 
presented, no attention can be paid to it. (24 Ohio State Rep. 467- 
471.) 

The land-owner is entitled to no damages for injuries likely to 
result from acts he has done since notified of the proceedings ; as, 
for resetting a fence erected on the land after view and assessment. 
In whatever he does while the proceedings are pending, he takes the 
risk that the road will be finally established. (22 Iowa Rep. 557.) 

APPLICATION TO COUNTY BOARD FOR REVISION. 

When the report of the viewers has been made, the land-owner 
has an opportunity of seeking a revision of the amount allowed him; 
and if he considers himself aggrieved by the action of the commis¬ 
sioners upon his claim, he may appeal to the district court, and obtain 
a trial before a jury. He may, however, lose his right of appeal by 
negligence ; for the county commissioners are not bound to notify 
him when they act upon the matter finally, and, unless he watches 
closely, he may not discover that it has been acted upon until the 
time for taking an appeal has gone by. (12 Kas. Rep. 25.) If the 
viewers disallow the claim, no matter how unjust their decision may 
be, the land-owner cannot enjoin the road on this ground, but must 
appeal, or resort to a petition in error. (31 Ohio State Rep. 621.) 

RIGHTS OF, WHEN NOT NOTIFIED. 

If a land-owner, resident in the county, or having a resident agent, 
receives no notice from the petitioners and makes no application to 
the viewers, he may, at any time within twelve months after the loca¬ 
tion of the road, file with the county commissioners an application 
for damages, and have his damages assessed by them (section 5); 
and of course he may appeal from the decision of the board as in 
other cases. The provisions for barring the claims of land-owners 
have no application to persons who. neither live in the county them¬ 
selves nor have an agent living in the county. (25 Kas. Rep. 616, 
617.) 


36 


KANSAS ROAD LAWS. 


VI. 

WHAT THE ROAD OVERSEER IS TO DO. 

It would be needless to tell the readers of this book who a road 
overseer is, or how he is elected, for all know without telling, and 
besides, the statute is clear enough upon those matters without 
further explanation. So this chapter will deal only with the duties 
of a road overseer. These are: First , To open established roads 
and keep them open; second , to keep the roads in his district in 
repair and in safe condition for travel; third , to collect road taxes; 
fourth , to keep proper accounts and make proper reports of his 
official doings. 

He has other duties to perform, under statutes as to noxious 
weeds, for the prevention of prairie fires, etc., but this Manual has 
to do only with his duties as to roads. The statutes alluded to will, 
however, be found in the Collated Road Statutes. 

NOTICE TO LAND-OWNERS TO OPEN ROAD. 

As we have seen, when the county commissioners establish a public 
road, they are to issue an order to the trustee of each township 
through which any part of the road runs, requiring him to cause the 
road to be opened for travel so far as it lies within his township. 
(Sec. 6.) 

When he receives this order, he must, in proper time, direct each 
road overseer in the township, through whose district any of the new 
road runs, to proceed to open the road, or to cause it to be opened; 
and then the overseer must begin his task, which is one not always 
perfectly free from trouble and annoyance, nor even from danger. 
His first duty is to notify the owners of the lands through which the 
road runs, if the owners are residents of the county, or the agents of 
non-resident owners who have agents resident in the county, to open 
the road themselves through their respective lands. It will be a 
trespass if he enters the land to remove a fence or the like unless 
the land-owner has had the notice allowed him by law. (25 Illinois 
Rep. 518.) If the owner of any of the traversed lands should be a 
minor, an idiot, or an insane person, then the notice must be given 
to that person’s guardian, if there be a guardian resident in the county. 


WHAT THE KOAD OVERSEER IS TO DO. 


37 


This notice is required, however, only in case the land is inclosed or 
cultivated. If it is vacant, unoccupied and uninclosed, so that there 
is no crop, no fence, nor anything of the sort to be removed in order 
to open the road, then no notice to the owner of such land is nec¬ 
essary; for the object of the notice is only to enable the owner to get 
his crops off, or to move his fences himself, so as to cause the least 
injury and inconvenience to him. For this reason, if land is in 
possession of a tenant, who has a crop on it that he owns, notice 
ought to be given to the tenant as if he were a land-owner too, — for 
he is the person to be benefited by it; but notice must also be 
given to the owner of the land, if he lives in the county or has an 
agent living in the county. 

If this notice is served after the first of October and before the 
first of March, it should require the parties notified to open the road 
through their lands within ninety days after being served with the 
notice; but if it is served after the first of March and before the 
first of October, then it must require the parties to open the road on 
or before the first day of the next January. (Section 113.) But 
suppose the notice should be given precisely on the first day of 
March or of October, neither before nor after, shall the notice then 
require the road to be opened in ninety days, or on the first day of 
the, next January? Much may depend upon which is right, if notice 
should be so given ; and as a mistake might render the acts of the 
overseer illegal ; and as this question has not yet been decided, and 
may be decided either way upon very plausible grounds; and as 
there cannot usually be any particular necessity for giving notice on 
these very days,— it would be prudent for the road overseer not to 
serve any notices on either the first day of March or the first day of 
October, and thus avoid all question as to legality on this ground. 

As this notice is to be “served” upon the parties, of course it 
must be written or printed; it cannot be “served” orally. 

If the surveyor has done his duty, and the road has been “con¬ 
spicuously marked throughout” (section 6), the land-owner need 
have little difficulty in ascertaining its exact location through his 
lands ; as the very object of the surveyor’s marks is to enable the 
land-owner or the road overseer to know the route of the road ; still, 
the road overseer’s notice should be reasonably specific, and should 
give such information as to enable the land-owner to readily under. 


38 


KANSAS ROAD LAWS. 


stand what is expected of him. For instance, it is not at all impos¬ 
sible that two roads may at different times have been established 
through the same person’s lands, and neither of them may have been 
yet opened; and in such a case how is he to know which road he is 
to open unless the notice tells him? In this, as in all other cases 
where error is probable, it is better to err on the safer side, and make 
the notice full enough to put the matter beyond doubt. Where 
printed notices are used, this will not involve a great deal of labor, 
but a serious error might cost the overseer much more than it would 
to even sit down and carefully and painfully write out all the notices 
in full. But the printed notices prepared in connection with this 
book are safe and full, and it will be found much more convenient to 
use them than to write out the notices and incur the risk of an occa¬ 
sional “slip of the pen.” It has been held that if the proceedings for 
laying out the road are invalid, the overseer will be liable to the 
land-owner as a trespasser for opening it; and that even a writ of 
mandamus compelling him to open the road will not excuse him if it 
has not been legally laid out over any land-owner’s premises. (31 
Ill. Hep. 97.) But neither the land-owner nor the overseer is to go 
by any description of any kind in actually opening the road : these 
may serve to show what road is to be opened, and cases may happen 
in which they would be very important for that purpose ; but the 
road is to be opened according to the “monuments” or marks act¬ 
ually set up on the land by the surveyor under the direction of the 
viewers. 

In opening a road, the overseer must follow strictly the marks of 
the surveyor, and cannot exercise any discretion in the matter. 
“After all the care to have a road located by commissioners, it never 
was designed that an overseer should change its location to suit his 
notions of public utility.” (18 Mo. Rep. 361.) A mistake as to the 
correct line of the road may make him liable in damages to the in¬ 
jured land-owner. (29 Ill. Rep. 135.) Unless the recorded survey 
shows the course to be otherwise, every line between two marks set 
up by the surveyor must be straight and direct. (18 Mo. Rep. 360, 
361.) And if the survey as recorded does not agree with the marks, 
stakes or stones set up, it has been held that the marks, stakes or 
stones must be heeded rather than the record. (8 N. H. Rep. 474- 
476.) Our statute makes no provision for giving the road overseer 


WHAT THE ROAD OVERSEER IS TO DO. 


39 


a copy of the survey for his guidance. The law gives him no means 
of information but the marks to be set up by the surveyor at the time 
of the view. But the exact location, course and distance of the road 
are made matters of record of which everybody must take notice, and 
the overseer cannot be exempt from this general requirement. It 
seem8 to the author, however, that a copy of the survey should ac¬ 
company the order to the township trustee requiring him to cause 
the road to be opened, and should be a part of that order to this ex¬ 
tent : that inasmuch as the order must necessarily describe the road 
to be opened, else it could not be intelligently obeyed, the description 
should be the description in the survey and report — not merely the 
description given in the petition. This would enable the trustee to 
give his overseers ample instructions as to the route of the road ; and 
the author believes the statute contemplates such a description in the 
order to the trustee. 

The object of the surveyor’s report, and of the map, is merely to 
preserve the best evidence that can be preserved of where the road 
runs, in order that some means of knowledge may be left should the 
stakes and stones set under the direction of the viewers be removed 
or destroyed, purposely or by accident; for, especially if the road 
had not yet been used long enough to mark clearly its course, there 
would be no reliable means at all of finding it in such a case if no 
record of the survey had been kept. But it must be remembered 
always that the surveyor’s report and the recorded map are not the 
road ; that it is marked on the ground itself by the stakes and stones 
set up. The surveyor “acts merely as the servant of the road viewers, 
and the road viewers locate the road where it is actually located, and 
not where the field-notes may happen to show that it was surveyed 
or located.” (34 Kas. Rep. 600.) The viewers are to go over the 
ground and decide just where the road shall run; they are to point 
out the course to the surveyor and have him set up “monuments” 
(stakes or other durable marks) while they look on and see that the 
monuments are put where they belong. The surveyor then must 
make a description of the courses and distances thus marked out on 
the ground; and to do this properly he makes a survey and plat, so 
that his report is the same in effect as if he were to write a letter 
describing the road as marked out by the viewers. Damages are 
allowed to land-owners with reference to the line of the road as thus 


40 


KANSAS KOAD LAWS. 


actually staked out there on the ground, and all that is done is done 
with reference to the road so actually staked out, while the sur¬ 
veyor’s report merely describes what has been done , precisely as 
county maps show the boundaries of counties as established by 
law. It is not the location of the road; and no more settles where 
the road shall run than a newspaper description settles the height 
of a mountain or the width of a lake — the description cannot alter 
the actual fact. The road is where the viewers marked it on the 
ground; and if the surveyor’s report does not agree with that, so 
much the worse for the report — the road is precisely where the view¬ 
ers decided it should be. (34 Kas. 595, 598, 601.) So, neither the 
overseer nor the land-owner has any guide to go by in opening the 
road but the marks which the viewers have caused to be set up ; they 
have nothing to do with the report nor with the map; if “the place 
of beginning or true course” of the road has become “uncertain by 
reason of the removal of any monument or marked tree by which 
the road was originally designated, or from any other cause,” it 
must be relocated by proper proceedings, and new marks must be set 
up before the overseer or the land-owner can be called upon to open 
the road. Of course, when the reviewers come to relocate the road, 
the surveyor’s report may be of great service to them in enabling 
them to find where the lost marks originally were; but the overseer 
and the land-owner must go by the monuments set up on the land; 
and if these are gone, must wait till they are restored by a review; 
otherwise the road actually opened might not be the road the original 
viewers laid out, and might run so as to do a land-owner trifling in¬ 
jury for which he had been paid large damages, while the public 
would be greatly inconvenienced; or, on the other hand, serious 
damage might be caused to the land-owner, largely in excess of what 
the viewers had allowed him with reference to the road as they meant 
it to be. 

But when the road has been opened, the overseer’s work has but 
commenced; for he must keep it open and safe to travel. To this 
end he must see that it is kept free from all unlawful obstructions. 
What obstructions are unlawful is shown in general terms by the 
statutes. (Collated Road Statutes, sections 19 to 43.) But some 
particular matters may be mentioned with advantage here. A “ will¬ 
ful obstruction” does not necessarily mean an obstacle to travel put 


WHAT THE ROAD OVERSEER IS TO DO. 


41 


in the road for the express purpose of obstructing, although, of course, 
that would be a willful obstruction: but a party who does any act 
which has the effect of obstructing the road, and after knowing that 
it has that effect still persists in what he is doing, and does nothing 
to avoid such an effect, is guilty of a willful obstruction. Thus, where 
a man built a dam on his own land, and it had the effect of constantly 
backing water over a road so as to keep it submerged and unfit for 
travel, and, having been notified by the overseer, still did nothing to 
remove the obstruction, the Supreme Court decided that he was guilty 
of a “willful obstruction.” (32 Kas. Rep. 450-455 ; see also 8 Kas. 
Rep. 255-259.) So, an owner of adjacent lands consented that some 
parties might fell a tree belonging to him, but on condition that it 
should not fall into the highway, or that they would remove it if it 
did; but the tree did fall into the road, and remained there, and he 
knew it. It was held that he was guilty of obstructing the road. (37 
Ohio State Rep. 1-10.) These examples show, in general, what will 
constitute a willful obstruction: (1) Something done by one, or 

under his direction or permission ; (2) Knowledge on his part that 
the effect of what is thus done is to obstruct the road ; (3) Not seek¬ 
ing in good faith to do anything to remove or prevent the obstruc¬ 
tion. But to be guilty he must have done some act. Mere omission 
to remove an obstruction put in the road by some other person, with¬ 
out the cooperation or consent of the party accused, will not consti¬ 
tute the offense of willful obstruction. (59 Illinois Rep. 306; 12 
Bush’s Ky. Rep. 264; 52 Iowa Rep. 228.) It is no offense to ob¬ 
struct an abandoned road. (36 Illinois Rep. 92.) 

Our Supreme Court has decided that when a railroad has inter¬ 
fered with a highway, the company is bound only to restore the road 
to its former condition, and is not thereafter bound to keep it in 
good condition; that the company’s duty ceases with the act of 
restoration. (27 Kas. Rep. 685-692.) We have already seen that 
the land-owner has the right to still use the premises over which the 
road runs in any manner which does not interfere with public travel; 
that he may dig coal, mine minerals, quarry rock, or plant out trees. 
Hence, he cannot be charged with obstructing the road, unless what 
he does is incompatible with the rights of the public; and he has a 
right to have a jury decide this question. (22 Kas. Rep. 285-294, 
295.) 


42 


KANSAS ROAD LAWS. 


A road overseer is a ministerial officer, and his duties and powers 
are confined to his own district. When he leaves his district bounda¬ 
ries, he leaves his office behind him, and outside his district has no 
power as a road overseer. (13 Ohio State Rep. 406.) 

It has been decided in Ohio that to resist a road overseer in the 
lawful discharge of his duty, is “resisting an officer,” within the 
statute making such resistance a criminal offense. (26 Ohio State 
Rep. 196.) 

It must not be forgotten that there was law in force long before 
the road statutes were enacted — the general rules of justice known 
as “ the common law” ; and hence the remedies pointed out by the 
statute are not always the only remedies the public can have for the 
protection of the public roads. Thus, if a railroad company in con¬ 
structing its track should tear up a public highway, and persistently 
refuse to put it in proper condition again, it has been held that the 
attorney-general (or the county attorney here) might bring a suit 
and obtain an injunction forbidding the company to use the crossing 
until it should do its duty by restoring the road to its proper condi¬ 
tion. (36 Ohio State Rep. 434.) 

The duties of the overseer as to working the roads, giving receipts, 
keeping and rendering accounts, etc., are all plainly set forth in the 
statute, and need no explanation here. Forms for receipts, or cer¬ 
tificates for materials, and of overseer’s accounts, reports, etc., will 
be found under the heading, “Forms and Record Entries.” 


HOW TO CONTEST A KOAD. 


43 


VII. 

HOW TO CONTEST A EOAD. 

Anyone through whose lands a proposed road will run may contest 
its establishment, unless he does some act which will preclude him 
from that right. But nothing he can do will, perhaps, waive his 
right to object, unless the county commissioners had jurisdiction to 
carry on the proceedings; it is only where the county board had, by 
following the statute strictly, become entitled to act, that any such 
question as that of waiver of the right to contest can arise; and the 
general rule upon which the courts act in such matters is, to be strict 
in requiring everything upon which jurisdiction depends, but if 
jurisdiction has been clearly acquired, then to be liberal in regard 
to irregularities in the proceedings themselves. (34 Kas. B-ep. 562.) 
If the board has acquired jurisdiction, mere irregularities or mistakes 
may be waived by the land-owner’s silence or conduct. The waiver 
is not a personal matter, but relates only to the land ; so that if a 
land-owner should waive notice of the view, this would preclude him 
from objecting because of the want of notice so far as concerned the 
land he then owned; but if he should afterwards purchase other 
lands over which the road runs, he could object that the owner of 
£Aa£land was not notified, and make a contest as fully as the original 
owner could have made it. (18 Kas. Rep. 386-396.) Before going 
further, however, let it be understood that we are now speaking of 
a contest against the road as illegally established — not a contest by 
a land-owner over the damages; the latter subject is fully discussed 
under the head, “ What the Land-Owner is to do.” With this 
understood, let us here see — first, who can contest the road, and 
what waives the right; second, upon what grounds it may be con¬ 
tested ; and third, by what proceeding the contest may be made. 

WHO CAN CONTEST. 

A taxpayer cannot bring any proceedings as a taxpayer to contest 
the location of a road. The taxpayer’s rights are represented by the 
State alone — they ar q public rights — and they can be asserted only 
by the county attorney or by the attorney-general suing in the name of 


44 


KANSAS ROAD LAWS. 


the State. The taxpayers have no other means of redress, except 
that of coarse they may, if they can, persuade the county board not 
to lay out the road. The only persons who can personally contest 
the road are those whose private rights are affected by it; and land- 
owners, whose lands are affected by the proposed road, are perhaps 
the only persons who answer this description. 

Of course, that the land-owner claims damages before the viewers 
cannot be a waiver of his right to contest; for that would be re- 
* quiring him to take the chance of losing all compensation if his con¬ 
test should not succeed. Besides, the law gives him no opportunity 
to contest on legal grounds until his damages have been assessed. 
But if he presents to the viewers his written application for damages, 
he does waive his right to object that notice of the view was not 
served upon him. (25 Kas. Rep. 517, 518; 33 Kas. Rep. 34; 36 
Kas. Reports, 170; 36 Kas. Reports, 664.) An appeal from the 
assessment of damages by the county board waives all objections to 
the validity of the proceedings, and nothing remains open to contest 
but the amount of damages. An appeal may, however, be taken as 
to the whole proceedings, and this will save all questions for review 
in the district court. 

GROUNDS OF CONTEST. 

The grounds of contest must be based upon either the want of 
power in the county commissioners to act in the case at all ; or the 
irregularity of their proceedings; or the illegality or injustice of 
their decision. The power of the commissioners to L act at all is 
called jurisdiction / the mode in which they are to exercise that 
power is the procedure ; their final determination is their decision. 
The whole subject of the grounds of contest will be gone over under 
the three heads— jurisdiction, procedure, and decision. 

Jurisdiction. — The law defining the powers of county commis¬ 
sioners authorizes them “ at any meeting ” among other things, “ to 
lay out, alter or discontinue any road running through one or more 
townships.” Nevertheless, they can exercise this power in any par¬ 
ticular instance only when the matter is properly brought before 
them as provided by statute ; they cannot act upon their own motion, 
but must wait, powerless, until the proper persons petition them in 
the manner prescribed by law. (18 Kas. Rep. 386-396.) Until a 
petition is presented to them, no jurisdiction exists. Again, this peti- 


HOW TO CONTEST A ROAD. 


45 


tion can be presented only by householders of the county ; a petition 
signed by any other class of persons is the same as no petition at all, 
for no others have a right to present a petition. And twelve house¬ 
holders of the county must sign it; eleven householders of the county 
and one non-resident, or one not a householder, will not do, but the 
petition will still be the same as if no householder had signed it. 
Hence, it is a good ground of objection to the jurisdiction of the 
commissioners that any one of the necessary twelve signers was 
not a householder , or not a resident of the county. (12 Ohio State 
Rep. 635, 636.) 

A non-resident land-owner can no more be regarded as a legal 
petitioner than if he owned no land ; the petitioners must be house¬ 
holders of the county. (35 Ohio State Rep. 454.) If twelve such 
legal petitioners have signed the petition, however, and it has been 
presented and the proper notice has been published by the clerk, the 
death of one of the petitioners afterwards will not atfect the power 
of the commissioners to act, for their jurisdiction will have become 
complete. (35 Ohio State Rep. 444.) It is not necessary, either, 
that the twelve petitioners shall all sign the same petition ; for dupli¬ 
cates may be circulated for convenience, and they will all be treated 
as one petition ; so that if the duplicates contain the signatures of 
twelve householders when taken together, that will be sufficient. 
(31 Ohio State Rep. 386 ; 32 Ohio State Rep. 544 ; 36 Ohio State 
Rep. 288.) 

But even though properly signed, the petition may be fatally de¬ 
fective for want of an intelligent description of the proposed road; 
for unless the description would enable a practical surveyor to locate 
it, the petition confers no jurisdiction upon the commissioners. (59 
Ind. Rep. 54, 55; 73 Ind. Rep. 454-456.) Supposing, however, 
that the petition is sufficient, there is yet another indispensable step 
to be taken — the notice to be given by the county clerk. If this 
notice has not been actually given, precisely as required by law, the 
commissioners have no power whatever to proceed. (32 Kas. Rep. 
507, 557.) 

But the petition and the notice by the county clerk give jurisdic¬ 
tion only to consider the propriety of laying out the road ; still an¬ 
other step is required before it can be laid out over any land-owner’s 
premises. Before any resident’s land can be taken, he must have 


46 


KANSAS KOAD LAWS. 


six days’ notice of the meeting of the viewers, or he must waive that 
notice. If any man living in the county or having an agent living 
in the county has neither been served with notice nor waived it, then, 
no matter how valid the proceedings may be as to every other person, 
an order establishing the road through his land will be absolutely 
void. Not only so, but the order will be void if notice has been 
served on the land-owner, unless a copy of the notice, with an affi¬ 
davit proving its service, is filed with the county clerk before the 
order establishing the road is made. ( 23 Kas.'Rep. 731, 732.) After 
the Supreme Court had decided otherwise as to the law as it then 
stood (12 Kas. Rep. 531), the Legislature added to section 4 these 
words : “Copies of said notice to owners of lands, with affidavits of 
service attached, shall be filed in the county clerk’s office before said 
road shall be established; ” and the Supreme Court afterwards de¬ 
cided that these words had the effect of denying to the commissioners 
the power to order the road to be recorded unless the copies and affi¬ 
davits had been filed. (23 Kas. Rep. 731, 732.) One more thing 
is necessary to the power to establish the road : there must be a cer¬ 
tificate filed by the viewers, or the commissioners acting as viewers, 
stating their opinion in favor of or against the road, and setting forth 
their reasons for their opinion. (35 Ohio State Rep. 445, 446.) 

Procedure. —Although the power exists, and everything necessary 
to jurisdiction has been done, the order establishing the road may 
still be voidable , though not void, because of irregularity in the pro¬ 
ceedings of the commissioners, the clerk, the surveyor, the peti¬ 
tioners, or the viewers. The proceedings are laid down in the 
statute, and that statute must be substantially complied with. 
Nothing can be done but what the statute prescribes, nor in any 
other way than that which it lays down. (24 Ohio State Rep. 66.) 
To begin with, the record of the proceedings must show a finding — 
a decision based upon some evidence — that the petitioners are house¬ 
holders, or the whole proceeding will be void. (18 Kas. Rep. 132, 
398.) If one of the viewers was not a householder, or was not dis¬ 
interested— as, if he were one of the petitioners (13 Rhode Island 
Rep. 129); or if the viewers, or one of them, improperly behaved, 
in such a way as would be improper in a juror (49 Connecticut Rep. 
229); or if the petitioners have bribed or “bought off ” an opponent 
of the road (35 Ohio State Rep. 455); or if only two viewers acted, 


HOW TO CONTEST A ROAD. 


47 


the other not having been notified of his appointment (7 Ohio State 
Rep. 16; 8 Kas. Rep. 258) — all these and many other objections 
may be urged against* the regularity of the proceedings. But the 
party contesting the road should appear before the commissioners 
when the matter is finally considered, and by affidavit or'otherwise 
make the record, or the papers on file, show these outside facts, in 
order that they may be brought before the district court, if a petition 
in error should become necessary. 

The Decision .— Objections to the final order establishing the road 
will be, either that the previous proceedings have been irregular, or 
that the board has no jurisdiction, or that the road will not be of 
public utility, or will work unnecessary inconvenience or hardship to 
some persons affected by it, or that the order itself is not sufficient 
in form. The legal objections have already been considered; and 
the other objections have been discussed in the chapter on “What 
the Viewers are to do.” So that nothing further need be said here 
as to the grounds of contest. 

THE MODE OF CONTEST. 

Before the final order of the board, there can be no contest in 
court, but the conflict must be before the county commissioners (32 
Kas. Rep. 507-509); for up to that time the commissioners have 
not accomplished anything. After the final order has been made, 
the party desiring to contest may take a general appeal, under sec¬ 
tion 1640 of the General Statutes of 1901, as a person “aggrieved” 
by the decision (18 Kas. Rep. 575); or he may obtain a complete 
transcript from the county clerk of the record and papers, and file a 
petition in error (24 Kas. Rep. 512, 513; 18 Kas. Rep. 129, 130); 
or, he may resist the road overseer when he seeks to open the road, 
and thus have himself arrested for obstructing a highway (23 Kas. 
Rep. 731, 734; 12 Ohio State Rep. 635, 636); or, he may sue the 
road overseer for trespassing when he has entered upon the land to 
open the road; or, which is the more usual course, he may bring a 
suit to enjoin the township trustee and road overseer from attempt¬ 
ing to open the road through his lands. (32 Kas. Rep. 555 ; 28 
Kas. Rep. 625; 26 Kas. Rep. 345; 18 Kas. Rep. 386-396.) 

If a petition in error or an injunction suit be brought, the 
“principal petitioner” must be made a defendant to the petition or 
suit, and, perhaps, the county board also; but the “principal peti- 


48 


KANSAS KOAD LAWS. 


tioner ” must be made a party, or the court will refuse to act. ( 24 
Kas. Rep. 511 ; 30 Kas. Rep. 583.) Fuller discussion of these 
matters would lead into a wide field, and wguld not be proper in 
such a manual as this ; besides, no prudent man will attempt to 
conduct his own suit, unless he be a lawyer, and it is even a proverb 
at the bar that a lawyer who manages his own case has a fool for a 
client. If a road is to be contested seriously, counsel should be 
employed at an early stage of the proceedings for that express pur¬ 
pose. 


I 


ABANDONMENT OF ROADS. 


49 


yin. 

ABANDONMENT OF EOADS. 

It has been held that “unopened,” in the statute declaring roads 
abandoned in certain cases (Collated Road Laws, section 17), 
means simply roads authorized, but which have never been opened 
(30 Kas. Rep. 559; 19 Ohio Rep. 367); that a mere temporary 
abandonment of part of a road once opened, because of some ob¬ 
struction, will not work a loss of the road under this statute; but 
there must be an evident intention by the public to wholly abandon 
the use of the road (30 Kas. Rep. 559 ; 28 Kas. Rep. 715, 721, 722); 
and that whenever all is done which the law and necessity require to 
be done in order to render the road open for public use, the road is 
not then an “unopened” road, within the meaning of the statute; 
and that when the road has been thus once legally opened, abandon¬ 
ment for ten years afterwards will have no effect. (30 Kas. Rep. 
560, 561.) Thus, making an opening in fences for the road was 
held to be a sufficient opening of the road to prevent the application 
of this statute, although a tenant was given permission to put up bars 
for the protection of his crop until he could get it off. (59 Illinois 
Rep. 306, 310.) But, to prevent the operation of the statute as to 
abandonment, the whole road must have been opened; and it has 
been held that if it is clear that the whole road cannot be opened 
before the time prescribed in the statute shall have expired, the over¬ 
seer may be enjoined from opening any part of it, though as yet the 
time has not expired. (34 Illinois Rep. 320.) Time consumed in 
litigation over, the road, by appeals, injunctions or other means of 
contesting the right to establish it or the legality of the proceedings, 
is not to be counted as part of the period within which the road must 
be opened or become abandoned. So it has been elsewhere decided, 
and it seems reasonable and in harmony with the usual construction 
of similar statutes as to other matters. (38 Illinois Rep. 347.) 


—4 


COLLATED ROAD STATUTES. 


[N. B.—The main statute is chapter 108, Laws of 1874. The sections of that 
statute are here indicated by double section numbers, the numbers in brackets be¬ 
ing the original numbers of the sections as they stand in the statute. At the end of 
each section is also given the section of the General Statutes of 1901. It was neces¬ 
sary to break up the original arrangement of the law, in order to group together the 
various kindred provisions. Every section with a number tn brackets belongs to the 
Road Law of 1874, either as it originally stood or as since amended.] 

PETITION AND BOND. 

§ 1 [1]. That applications for laying out roads, or for viewing, 
re-viewing, altering, or vacating any road, shall be by petition to 
the board of county commissioners, signed by at least twelve house¬ 
holders of the county, residing in the vicinity where said road is to 
be laid out, viewed, re-viewed, altered, or vacated ; and one or more 
of the signers of any petition presented as aforesaid shall enter into 
a bond with sufficient security, payable to the State of Kansas, for 
the use of the county, to be approved by the county commissioners, 
conditioned that the persons signing such bond shall pay into the 
treasury of the county the amount of all costs and expenses accruing 
on said location, view, re-view, alteration, or vacation ; in case the 
proceedings had in pursuance of said petition shall not be finally 
confirmed and established, and on neglect or refusal of the persons 
so bound, after a liability shall have accrued, the county clerk of the 
county shall collect, or cause to be collected, such costs and expenses, 
and pay the same into the county treasury. (§ 6016.) 

§2 [2]. All petitions for laying out or altering roads shall specify 
the place of beginning, the intermediate points, if any, and the place 
of termination of such road. (§ 6017.) 

APPOINTMENT OF VIEWERS, AND PUBLISHING GENERAL NOTICE. 

§ 3 [3].* Upon presentation of any petition for a road, or for 


* The concluding section of chapter 411, Laws 1903, reads : 

u Seo. 8. Sections 3, 5, 6, 7, 8, 9, 10 and 11 of chapter 108 of the Laws of 1874, being general sec¬ 
tions 6018, 6020, 6021, 6022, 6023, 6024, 6025 and 6026 of the General Statutes of 1901, are hereby re¬ 
pealed ; provided, that all roads for which a petition has been filed prior to the taking effect of this act 
shall be viewed, surveyed and opened in accordance with the provisions of chapter 108 of the Laws of 
1874.” 

The act took effect from the publication of the Session Laws, June 1, 1903. Hence, where petitions 
were filed before June 1, 1903, the proceedings must be carried on as if the statute had not been 
amended. 

( 50 ) 




COLLATED KOAD STATUTES. 


51 


the alteration or vacation of any road, to the county commissioners, 
at any regular session of their board, it shall be the duty of said com¬ 
missioners, if they find the petition to be a legal one, and that the 
proper bond has been filed, to appoint three disinterested householders 
of the county as viewers f with said commissioners, who may act as 
viewers of said road, and the county clerk shall give notice by adver¬ 
tisement set up in the county clerk’s office and in every municipal 
township through which any part of said road is designed to be laid 
out, altered, or vacated, for at least twenty days, and by publication 
for two consecutive weeks in a newspaper, if there be one, published 
in the county, setting forth that such petition has been presented, 
giving the substance thereof, and that the commissioners, or the 
viewers, [ will ] on the day designated, which shall not be more than 
twenty days after the date of the second publication in the newspaper 
of the notice herein required, proceed to view said road, and to give 
all parties a hearing. They shall also cause a record of such notice 
to be entered on their journal by the county clerk. They shall issue 
an order directing the county surveyor to meet with them at the time 
and place named in said notice to survey such road. In case of fail¬ 
ure to meet on the day designated, they may meet on the following 
day, without further notice ; and in case of failure to meet within the 
time herein specified, new notice shall be given as hereinbefore pro¬ 
vided ; that in all applications for the location, change and relocation 
of any road to be located upon or along any section line, and the pe¬ 
tition shall so state, and shall specify the section lines to be followed, 
the place of beginning, and the place of ending, the survey may be 
dispensed with ; and in case the owners of the lands taken agree in 
writing to the proposed location, relocation, or change, and the com¬ 
missioners are satisfied that the location, relocation or change prayed 
for is practicable, and can be made without unreasonable expense, 
they may dispense with the viewing of such location, relocation or 
change of road, and shall order the same to be opened, and’shall also 
direct the county clerk to note such location, relocation or change of 
roads upon the road records of his office. (§ 6018, as amended, Laws 
1903, ch. 411, sec. 1.) 


t This is somebody’s botch-work. The original bill read: “To appoint three disinterested house¬ 
holders of the county as viewers, of said commissioners may act as viewers of said road,” of being 
evidently a printer’s mistake for or. All the subsequent provisions of the new act, say “ commissioners 
or viewers,” and this is evidently the meaning. This clause must be read thus : “ Appoint three dis 
interested householders of the county as viewers, or said commissioners may act as viewers , and the 
county clerk,” etc. All the other provisions show this to be the meaning of this clause. 




52 


KANSAS ROAD LAWS. 


§4 [4]. It shall be the duty of at least one of the petitioners to 
cause six days’ notice to be given in writing to the owner or owners, 
or their agents, if residing in the county, or if such owner be a minor, 
idiot or insane person, then to the guardian of said person, if a resi¬ 
dent of the county, through whose land such road is proposed to be 
laid out and established, and also six days’ notice to the county sur¬ 
veyor of the time and place of meeting, as specified in the notice of 
the commissioners. Copies of said notice to owners of lands, with 
affidavits of service attached, shall be filed in the county clerk’s office 
before said road shall be established. (§ 6019.) 

VIEW, SURVEY, CERTIFICATE, FINAL ACTION. 

§ 5 [5]. It shall be the duty of the commissioners or said viewers, 
or a majority of them, and the county surveyor, to meet at the time 
and place specified in the notice aforesaid, or on the following day 
thereafter; and they may, if they deem it necessary, take to their 
assistance two suitable persons as chain-carriers and one as marker, 
and then proceed to view, survey, lay out, alter or vacate the road 
as prayed for in said petitiou, or as nearly so as a good road can be 
made at a reasonable expense, taking into consideration the utility, 
convenience, and inconvenience, and expense which will result to in¬ 
dividuals as well as to the public, if such road, or any part thereof, 
shall be established and opened or altered. Said commissioners or 
viewers shall also assess and determine the amount of damages sus- 
tained by any person or persons through whose premises the said 
road is proposed to be established. Such commissioners or viewers 
shall not assess or award damages or compensation to any person or 
persons in consequence of the opening of said road, unless the owner 
or owners, or their agent or guardians, having been duly notified as 
provided in section 4 of the applications and proceedings by which 
their property is sought to be appropriated or damaged, shall have 
filed a written application with said commissioners [or viewers], giving 
a description of the premises on which damages or compensation are 
claimed, at the time of said view and hearing, as hereinbefore pro¬ 
vided for : Provided , That in case any person has not received the 
notice of the view of said road, as provided for in section 4, he may 
at any time within twelve months after the location of said road file 
an application for damages with the county commissioners, who 
shall determine the amount of damages sustained by such claimant; 


COLLATED ROAD STATUTES. 


53 


and all applications for damages shall be forever barred unless they 
are presented as provided for in this act. (§ 6020, as amended, 
Laws 1903, cli. 411, sec. 2.) 

§ 6 [6], If the commissioners or viewers, after viewing such pro¬ 
posed road, shall so direct, the surveyor shall survey the said road 
under their direction, and cause the same to be conspicuously 
marked throughout, noting the courses and distances. He shall also 
make out and deliver to the county clerk, without delay, a correct 
and certified return of the survey of the said road, and a plat of the 
same ; and the said commissioners or viewers shall make out and 
sign a certificate stating their opinion in favor of or against the estab¬ 
lishment, alteration or vacation of said road or any part thereof, and 
set forth the reason of the same, which certificate shall be filed with 
the county clerk on or before the first day of the session of the com¬ 
missioners then next ensuing, and at such session next ensuing the 
said commissioners shall, if they conclude that said road should be 
established, altered, or vacated, and no legal objections appear 
against the same, and they are satisfied that such road will be of 
public utility, enter an order upon their records that said road, survey 
and plat be recorded, and from thenceforth said road shall be consid¬ 
ered a public highway, and the commissioners shall issue their order 
to the trustees of the respective townships in which said road is 
located, directing them to cause the same to be opened for public 
travel; but if the commissioners conclude that such road as applied 
for is unnecessary, then no further proceedings shall be had thereon, 
and the obligor or obligors in the bond securing costs shall be liable 
for the full amount of all costs accrued by reason of the view of said 
road. (§ 6021, as amended, Laws 1903, ch. 411, sec. 3.) 

§ 7 [7]. It shall be the duty of the commissioners or viewers, at 
the same time they make their certificate of the view, to make also a 
separate certificate in writing stating the amount of damage, if any, 
by them assessed, and to whom, and submit therewith the written 
application upon which the assessments have been made. Any per. 
son feeling himself aggrieved by the award of damages made by the 
board of county commissioners may appeal from the decision of said 
board of county commissioners to the district court upon the same 
terms, in the same manner and with like effect as in appeals fiom 
judgments of justices of the peace in civil cases. (§ 6022, as amended, 
Laws 1903, ch. 411, sec. 4.) 


54 


KANSAS ROAD LAWS. 


RELOCATING ROAD. 

§8 [8]. When the place of beginning or true course of any road 
shall be uncertain by reason of the removal of any monument or 
marked tree by which the road was originally designated, or from 
any other cause, the county commissioners shall constitute a board 
of review, or the county commissioners may appoint three disinter¬ 
ested householders of the county, and may re-view, re-mark and 
straighten said road, if they deem it necessary; and the county sur¬ 
veyor, with said commissioners or the viewers, shall view and re¬ 
survey the same, and shall have the same correctly marked, as in the 
case of new roads, and shall make a correct return of said survey 
and a plat of said road, and the same, together with the certificate 
of the commissioners or viewers, shall be recorded as in other cases, 
and from thenceforth said road, surveyed as aforesaid, shall be con¬ 
sidered a public highway. (§ 6023, as amended, Laws 1903, ch. 411, 
sec. 5.) 

ROAD ON COUNTY LINE. 

§ 9 [9]. When it shall become necessary to establish a road on a 
county line, the inhabitants along such line may petition the board 
of commissioners of their respective counties for a view of said road 
in the manner hereinbefore provided ; and it shall be the duty of the 
board of commissioners for each of the counties interested to act as 
viewers, or they may appoint three disinterested householders of the 
county, and they or a majority of each of them shall meet at the 
time and place named in the order of the county interested as in al¬ 
phabetical order, together with the surveyor of such county, and the 
commissioners or viewers and surveyor aforesaid shall assess all dam¬ 
ages, and shall in all respects be governed by the preceding provi¬ 
sions of this act; and the commissioners or viewers and surveyor 
aforesaid shall make their report and certificate, in writing, for or 
against such road, which shall be filed and recorded in each of the 
counties as hereinbefore provided for. (Part of sec. 9, § 6024. As 
amended, Laws 1903, ch. 411, sec. 6.) 

ROAD ON CITY LINE. 

§ 10 [9]. And when it shall become necessary to establish a road 
on the line of any city, the board of commissioners of the county, 
together with three householders appointed by the corporate authorities 
of such city, shall act as a board of viewers, who shall proceed as di- 


COLLATED EOAD STATUTES. 


55 


rected herein to lay off a road of the width that may be agreed upon 
by said commissioners and said corporate authorities, not to exceed 
eighty feet in width, half on the side of the city and the other half 
on the side of the county, or the county commissioners and the view¬ 
ers appointed by the corporate authorities may act separately in lay¬ 
ing off so much of said road as lies within their respective jurisdictions; 
and the certificate of said commissioners [and viewers] in regard to 
said road and the survey and plat of the same shall be filed and re¬ 
corded as in other cases, and said road shall be opened in the manner 
hereinbefore provided for. (Part of sec. 9, §6024. As amended, 
Laws 1903, ch. 411, sec. 6.) 

WIDTH OF ROADS. 

§11 [28]. The width of all county roads shall be determined by 
the viewers at the time of establishing the same, and shall not be 
more than eighty nor less than forty feet: Provided , That in cases 
where a growing hedge, or other permanent improvement, the re¬ 
moval of which would cause too great an expense, the viewers may 
determine the width of the road at not less than thirty feet; and in 
cases where a growing hedge or permanent improvement on or near 
one side of the proposed road precludes the road being laid equally 
on both sides of the line, the viewers may establish all or any part of 
said road on the side of the section line not incumbered by improve¬ 
ment. (§6043.) 

PRIVATE ROADS. 

§ 12 [29]. That whenever the premises of any person in this state 
shall be so completely surrounded by adjoining lands, the property 
of other persons, as to be without access to any public highway, then 
such person may petition the board of county commissioners of the 
county in which such premises lie for a road through some portion 
of the adjoining lands ; and the board shall, on the presentation of 
such petition, proceed in accordance with the provisions of the fore¬ 
going sections to lay out such road, make returns of plats, and allow 
damages, if any should be held or allowed, provided said road shall 
not exceed twenty-five feet in width, and belaid out upon the section 
or half-section lines when practicable. (§ 6044.) 

§ 13. That when any landholder, who has no road or highway, de¬ 
sires the benefit of a road or highway, such person may petition the 
county commissioners of the county in which such person resides to 


56 


KANSAS ROAD LAWS. 


open a private lane or road to a public highway, when it shall be the 
duty of said commissioners to appoint three disinterested viewers to 
view and open a lane or road by the nearest and most practicable 
route to an established highway : Provided , That said lane or road 
shall follow or run parallel with some section or subdivision line ; 
said road not to exceed two rods in width. (§ 6053.) 

§ 14. Said viewers shall assess all damages, when damages are 
claimed, and the road shall be declared opened when the damages, if 
any, are paid. (§ 6054.) 

§ 15. That no portion of the expense of viewing and locating 
roads under this act shall be chargeable to the county or state, but 
shall be paid by the person for whose benefit the road is located. 
(§6055.) 

AVENUES, STREETS AND ALLEYS. 

§16 [15]. All avenues, streets and alleys in cities, which are or 
may hereafter b& laid out agreeably to law, shall be and the same 
are hereby declared public highways : Provided , That the munici¬ 
pal authorities of any incorporated city may make, ordain and en¬ 
force such ordinances concerning the sidewalks of the streets of such 
city as shall be deemed necessary to prevent such sidewalks from 
being used for the passage of horses, wagons and carriages, or hitch¬ 
ing horses or other animals thereon.* (§ 6030.) 

UNOPENED ROADS VACATED. 

§ 17. Any county road or part thereof, which has heretofore or 
may hereafter be authorized, which shall remain unopened for public 
use for the space of seven years at any one time after the order 
made or the authority granted for opening the same, shall be and 
the same is hereby vacated, and the authority granted for erecting 
the same is barred by lapse of time ; and any State road or part 
thereof, which has heretofore or may hereafter be authorized, which 
shall remain unopened for public use for the space of ten years after 
the passage of the act authorizing the same, shall be vacated, and 
the authority for opening it repealed for non-use. "(Id., § 6058.) 

COMPENSATION OF VIEWERS, ETC. 

§18 [11]. All persons required to render services under this act 
shall receive compensation for each day they shall necessarily be 

* This section is still piously printed as part of the general road law, but to the editor It seems 
somewhat antiquated. He, however, also piously retains it for lack of right to eliminate it. 



COLLATED ROAD STATUTES. 


57 


employed, as follows, to wit: On part of the board of county 
commissioners while acting in this capacity, three dollars each ; 
viewers, two dollars each ; chain-carriers and markers, one dollar 
and fifty cents each, to be charged as costs and expenses, and paid 
as other costs and expenses on order of the commissioners : Pro¬ 
vided , That the surveyor shall be paid for his services in the manner 
prescribed by law.* ( § 6026, as amended, Laws 1903, ch. 411, sec. 7.) 

OBSTRUCTION OF HIGHWAYS. 

Natural or Accidental. 

§ 19 . It shall be the duty of the road overseers of the several 
counties of this State to remove, or cause to be removed, at least 
once each year, between the fifteenth day of June and the fifteenth 
day of July, in the public highways, all cockle-burs, Rocky Mountain 
sand-bnrs,' burdocks, sunflower, Canada thistles, and such other 
obnoxious weeds as may be injurious to the best interest of the 
farming community. (§6059.) 

§ 20 . The road overseers in the several counties in this State are 
hereby directed to carry section one of this actf into effect, under the 
provisions of chapter one hundred and eight (108) of the Session 
Laws of eighteen hundred and seventy-four.:]: (§6061.) 

§21 [27]. If at any time any highway shall be obstructed or be¬ 
come impassable, or any bridge shall be impaired so as to be unsafe, 
it shall be the duty of the overseer of the district in which such ob¬ 
struction, impassable road or impaired bridge may be situated, to 
cause such obstruction to be removed, or such road or bridge to be 
repaired forthwith, for which purpose he shall order out such number 
of persons liable for road tax in his district as will be necessary to 
make said repairs ; and every person so ordered out, who shall re¬ 
fuse or neglect to attend with the proper implements, or shall spend 
the time in idleness after reporting for labor, shall be liable to a fine 
of five dollars. (•§6042.) 

§ 22 . The township trustee may remove obstructions from the 
highways in cases where the road overseers shall refuse or fail to do 
so; and the trustee shall, such all cases, have all the power of road 
overseers in calling out the inhabitants to perform the work neces¬ 
sary to remove such obstruction. (§7784.) 


* See Gen. Stat. 1901, §3047. 

+ The preceding section. 

$ The Road Law which constitutes the basis of this Manual. 



58 


KANSAS ROAD LAWS. 


§23. The county commissioners are hereby authorized, whenever 
in their judgment the inconvenience to the public will not be too 
great, to allow any person through whose land a road is laid out to 
maintain convenient gates for a time sufficient to grow a hedge, not 
to exceed five years, in counties having a population of four thousand 
and over; and in counties having a population of less than eight 
thousand inhabitants, the county commissioners are hereby author¬ 
ized, whenever in their judgment the inconvenience to the public 
will not be too great, to allow any person through whose land a road 
is or has been laid out to maintain convenient gates across said road 
for such length of time as such county commissioners may from time 
to time determine. (§ 6028.) 

§ 24. It shall be lawful for any owner, agent or lessee of any land 
not within the limits of any incorporated city, who may wish to grow 
a hedge or hedges on any land by or through which any public high¬ 
way is now or may hereafter be located, to set his or their fence, as 
the case may be, out into any public highway or street any distance 
not exceeding eight feet from the side line of such public highway or 
street, and may continue to maintain such fence in such public high¬ 
way or street for any time not exceeding five years from the time of 
setting such fence in such public highway or street: Provided , Such 
fence shall not remain in such highway or street more than two years, 
unless such person shall plant a hedge along the line of such public 
highway. (§3106.) 

Slack Water Navigation Companies. 

§25. That in case any public highway shall be destroyed or ob¬ 
structed by the flowage of any stream in consequence of the erection 
of any dam or dams, or otherwise, such corporation shall bridge such 
stream at the place or places where such highways have been de¬ 
stroyed, and maintain the same; and in case of partial destruction 
of such highway, the said highway shall be repaired, and maintained 
as a good, passable highway by such corporation. (Proviso, § 1451.) 

Railway Companies. 

§ 26. Every railway corporation shall * * have power : * * 

Fourth , To construct its road across, along or upon any * * high¬ 
way * * which the route of its road shall intersect or touch ; but 

the company shall restore the * * highway * * thus inter- 


COLLATED HOAD STATUTES. 


59 


sec ted or touched to its former state, or to such state as to have not 
necessarily impaired its usefulness. (§1316.) 

§ 27. It shall be the duty of each and every railway company or 
corporation owning, controlling or operating any line of railroad 
within this state to construct and keep in repair, at each crossing of 
any regularly laid out public highway, a good and substantial cross¬ 
ing, by securing on each side of each rail a board not less than twelve 
feet long and not less than ten inches wide and two inches thick, and 
shall fill the space between the two inside boards with gravel or broken 
stones, or shall floor the space with boards not less than two inches 
thick and twelve feet long. (§ 5869.) 

Telegraph Companies. 

§28. Corporations ■ created for the purpose of constructing and 
maintaining magnetic telegraph lines are authorized to set their poles, 
piers, abutments, wires and other fixtures, along, upon, and across 
any of the public roads, streets and waters of this state, in such man¬ 
ner as not to incommode the public in the use of such roads, streets 
and waters. (§ 1342.) 

Telephone Companies. 

§ 29. All such corporations shall have all the rights and powers 
conferred, and be subject to all the liabilities and duties imposed by 
the general laws of this state upon telegraph corporations. (§ 1252.) 

[Pi,pe-lines for Natural Gas may be laid in public highways. A pipe-line is 
merely a means of transportation. ( Slate v. Kansas Natural Gas &c. Co., 80 
Pac. Rep. 962.) ] 

Moving Steam Machinery Over Highways. 

§ 30. All persons, owning, controlling, operating or managing 
steam threshing machines, saw mills, or steam traction engines of 
any kind, in moving the same over the public highway, are required 
to lay down planks not less than one foot wide, three inches in thick¬ 
ness, and of sufficient length, on the floor of all bridges and culverts 
situate on the public highway, while crossing the same, for the wheels 
of said engine of any kind to run on while crossing such bridge or 
culvert: Provided, That this section shall not apply to any machine or 
engine not exceeding one ton in weight. (§ 2378.) 

§31. All persons owning, controlling or operating or managing 
steam traction engines of any kind, in moving the same along the 
public highway, are required on meeting any person or persons in 
vehicles of any kind, drawn by horses, mules or other animals, to 
turn to the right, giving as much of the public highway as possible, 


60 


KANSAS KOAD LAWS. 


and then shut off the steam and come to a halt at the distance of one 
hundred yards from the person or persons so met, and to remain 
with the steam down and halted until said person or persons shall 
have passed at a distance of one hundred yards from the place of 
halting on said highway: Provided , That nothing in this section 
shall prevent anyone operating such engine drawing the same by 
team or teams without making the halt or halts above referred to. 
(§ 2379.) 

§ 32. Any person or persons owning, controlling, operating or 
managing any steam traction engine shall, in passing through any 
village, town, or city, attach a team thereto for the purpose of assist¬ 
ing in drawing the same. (§ 2380.) 

§ 33. Any person or persons violating the provisions of this act 
shall be deemed guilty of a misdemeanor, and shall, upon conviction 
therefor, be fined in a sum of not less than five dollars nor more than 
two hundred dollars for such offense. (§ 2381.) 

TJnlavrful. 

§ 34 [17J. If any person shall willfully demolish, throw down, 
alter or deface any milestone or guideboard on or at the forks of 
any roads, or shall willfully obstruct any such road by any means 
or in any manner whatever, every person so offending shall, on con¬ 
viction, be adjudged guilty of a misdemeanor, and be punished by 
imprisonment in the county jail not exceeding three months, or by 
fine of not less than twenty nor more than one hundred dollars, or 
by both such fine and imprisonment, which fine shall be paid by the 
officer receiving the same into the county treasury for school pur¬ 
poses. And every person obstructing any such road as aforesaid 
shall also be liable in a civil action for all damages sustained by any 
person who has in any manner whatever been damaged by reason of 
such obstruction. (§ 6032.) 

§ 35. Every person who shall willfully or maliciously break, de¬ 
stroy, or remove any milepost, milestone, or any guideboard, erected 
by authority of law on any public highway or road, or shall willfully 
and maliciously deface or alter any inscription on any such post, 
stone or board, shall be deemed guilty of a misdemeanor. (§ 2104.) 

§ 36. It shall be unlawful for any person or persons to hereafter 
plow up the public highways for the purpose of scouring plows, or 
for any other purpose, except it be under the direction of the overseer 


COLLATED ROAD STATUTES. 


61 


•of public highways; and any person or persons violating the provi¬ 
sions of this section shall be guilty of a misdemeanor, and upon con¬ 
viction before any court having competent jurisdiction shall be fined 
for each and every offense under this act, in a sum not exceeding 
ten dollars nor less than three dollars, with cost of suit. (§ 6060.) 

§ 37. Any person being the owner of any domestic animal or 
animals, or having the same in charge, who shall turn out or suffer 
any such domestic animal or animals having any contagious or infec¬ 
tious disease, knowing the same to be so diseased, to run at large 
upon any inclosed land, common or highway, or shall let the same 
approach within one hundred feet of any highway, or shall sell or 
dispose of any domestic animal or animals, knowing the same to be 
so diseased, without fully disclosing the fact to the purchaser, shall 
be deemed guilty of a misdemeanor, and shall be punished by a fine 
in any amount not exceeding five hundred dollars, and imprison¬ 
ment in the county jail ijot more' than six months. (§ 2331.) 

§ 38. Any person violating any of the provisions of this act, in 
addition to the penalties therein provided, shall be liable for all dam¬ 
ages that may accrue to the party damaged by reason of said diseased 
animal or animals imparting disease. (§ 2332.) 

§ 39. If any person shall run or cause to be run upon any public 
road or highway in common use in this state, any horse or horses, so 
as to interrupt travelers thereon, or put to fright the horses or other 
animals by them rode or driven, he shall upon conviction be adjudged 
guilty of a misdemeanor, and punished by fine not less than five nor 
more than twenty dollars. (§ 2267.) 

§ 40. If more than two persons shall run or cause to be run a 
match horse-race in any public road in common use, for the purpose 
of trying the speed of their horses, every person so offending shall 
upon conviction be adjudged guilty of a misdemeanor, and punished 
by fine not less than five nor more than twenty dollars. (§ 2268.) 

§41. If any person or persons shall put any part of the carcass 
of any dead animal into any river, creek, pond, road, street, alley, 
lane, lot, field, meadow or common ; or if the owner or owners there¬ 
of shall knowingly permit the same to remain in any of the aforesaid 
places, to the injury of the health or the annoyance of the citizens 
of this state or any of them, every person so offending shall on con¬ 
viction thereof before any justice of the peace of the county be fined 


62 


KANSAS ROAD LAWS. 


in a sum not less than one dollar nor more than twenty-fire dollars ; 
and every twenty-four hours during which said owner may permit 
the same to remain thereafter shall be deemed an additional offense 
against the provisions of this act. (Id., §2354.) 

§ 42. That each and every railroad company, or any corporation 
leasing or otherwise operating a railroad in Kansas, are hereby pro¬ 
hibited from allowing their trains, engine or car, to stand upon any 
public highway, crossing, street, or alley, in any unincorporated town 
to exceed ten minutes at any one time. (Id., § 5953.) 

§ 43. Any person or employe of any railroad company or corpora¬ 
tion operating a line of railroad in Kansas failing or neglecting to 
comply with section one of this act shall be guilty of a misdemeanor, 
and upon conviction shall be punished by a fine of not less than fifty 
dollars nor more than three hundred dollars, or by imprisonment in 
the county jail not to exceed ninety days. (Id., § 5954.) 

PROVISIONS FOR PUBLIC SAFETY AND CONVENIENCE. 

§ 44 [14]. Each overseer within his district shall erect and keep 
up, at the expense of the township, posts and guideboards at the forks 
of every state and county road, containing an inscription in legible 
letters, directing the way and naming the distance to such cities as 
are situated on said road ; and any road overseer failing to do so in 
a reasonable time, not to exceed six months, shall, upon conviction 
thereof before any justice of the peace of the proper county, be fined 
in any sum not exceeding five dollars, with costs of suit; and such 
fine, when collected, shall be paid into the county treasury for school 
purposes. (Id., § 6029.) 

§ 45 [31]. It shall be the duty of the township trustees of the sev¬ 
eral townships in each county of this state, to cause to be put up and 
kept in good repair at each end of each and every bridge erected by 
the county upon any highway in their respective townships, of a 
span of not less than twenty-five feet, a notice, which shall be printed 
in conspicuous letters, with the following words: “Five dollars fine 
for riding or driving over this bridge faster than a walk.” (Id., § 6046.) 

§ 46 [32]. It shall be unlawful for any person or persons to ride 
or drive any horse, mule, ass or ox over any such bridge in this state 
faster than a walk, or drive more than fifty head of cattle on such 
bridge at one time; and any person who shall so unlawfully ride or 
drive such horse, mule, ass or ox over such bridge, or drive over the 


COLLATED KOAD STATUTES. 


63 


same more than fifty head of cattle at any one time, upon conviction 
thereof shall pay a fine of five dollars, and costs of suit. (§ 6047.) 

§ 47 . Each road overseer, within his district, shall erect and keep 
np, at the expense of the township, posts or boards at the fords of 
every river or creek that in high water becomes impassable; which 
posts shall be set at or near low-water mark, on which shall be in¬ 
scribed in legible letters, or plain figures, the depth of water at low 
water, together with a scale of feet showing the scale of feet above 
low-water mark to the height which said stream is known to have 
rise^i. (§ 6056.) 

§48. Every railway corporation shall cause boards to be placed, 
well supported by posts or otherwise, and constantly maintained, 
across each traveled public road or street, when the same is crossed 
by the railway on the same level. Said board shall be elevated so as 
not to obstruct the travel, and to be easily seen by travelers; and on 
each side of such board shall be painted in capital letters, “ Look out 
for the cars.” But this section shall not apply to streets in cities or 
towns, unless the corporation shall be required to put up such boards 
by the city or town authorities, or the officer having charge of such 
streets. (Id., § 1324.) 

§ 49. LTo road overseer in this State shall make or cause to be 
made any ditch more than two feet deep without the consent and ap¬ 
proval of the commissioners of roads and highways; and in any case 
where a ditch one foot deep or more shall be. made in front of any 
residence property, the road overseer shall construct and maintain a 
bridge or culvert at the usual entrance connecting said residence prop¬ 
erty with the public highway so as to make a good and substantial 
crossing over any ditch so made. (Session Laws 1905, ch. 362, § 6.) 

Destruction of Noxious Weeds .* 

§ 50. Every person and every corporation shall destroy, on all 
lands which he or it may own or occupy, all'weeds of the kind known 
as Russian thistle and Canadian thistle, at such time as the board 
of county commissioners may direct; and notice shall be published 
in one or more county papers for a time not less than three weeks 
before the time fixed upon for the destruction of said noxious weeds. 
(Gen. Stat. 1901, §7910.)___ 


* See also, section 61. 





64 


KAjSTSAS bo ad laws. 


§51. It shall be the duty of the county commissioners to fix the 
time for the destruction of all such noxious weeds, and to provide for 
the destruction in such a manner as to prevent their bearing seed. 
(Id., § 1911.) 

§ 52. Every overseer of highway of every township or county 
•shall also, at the same time in like manner, destroy all such noxious 
weeds, either on the highways of his road district, railroad right-of- 
way, or on any unoccupied land therein, upon which the owner or 
lessee thereof shall neglect or refuse so to do; and for such service 
overseers of highways or persons employed by him shall receive as 
compensation the sum of one dollar and fifty cents per day, or three 
dollars per day for man and team, to be paid out of the general 
county fund: Provided , The limitation of time, as provided in para¬ 
graph 5506 of section 33, Laws of 1889,* in relation to road over¬ 
seers, shall not apply to the provisions of this act. (Id., § 7912.) 

§ 53. It shall be the duty of the overseers of highways to present 
to the hoard of county commissioners an itemized account, verified 
under oath, showing description of each piece of land upon which 
noxious weeds have been destroyed, in accordance with the provisions 
of this act, and the amounts of the charge for such service, by separate 
items; and said amount shall become a lien against the lands so 
described, except in case of the destruction of such noxious weeds on 
the public highways. The amount of cost of the destruction of such 
noxious weeds as so certified shall be placed upon the next tax list 
in a separate column, headed, 11 For the destruction of noxious weeds,” 
as a tax against the land upon which such noxious weeds were de¬ 
stroyed, subject to all the penalties thereof, and to be collected as 
other taxes; and the entry of such tax upon the tax list shall be con¬ 
clusive evidence. (Id., §7913.) 

§ 54. It shall be the duty of all overseers of highways to certify 
to the county clerk in an itemized account, verified by oath, the 
amount of labor performed in destroying such noxious weeds on all 
lands not public highways, on or before the fifteenth day of Septem¬ 
ber in each year. (Id., § 1914.) 

§ 55. Any railway company which shall be notified by any road 
overseer or township trustee, in writing, through its agent, section 


* Section 109 ol this compilation. 



COLLATED ROAD STATUTES. 


65 


foreman, or road master, tliat the noxious weeds referred to in this 
act are growing upon the said company’s right-of-way or other lands, 
which writing shall designate the location of said growing weeds, 
then the said company shall forthwith destroy the same; and failure 
so to do shall subject said company to the penalties imposed by sec¬ 
tion 8 of this act.* And in case of such notice having been served 
upon any railroad company, and ten days having elapsed without 
the destruction of said noxious weeds, then it shall be the duty of the 
road overseer, within whose district said right-of-way or other lands 
may be upon which said noxious weeds are growing, to proceed to 
enter upon said right-of-way or land as the case may be, and destroy 
the noxious weeds there growing; and for such service he shall be 
allowed one dollar and fifty cents per day, and the'Same shall be paid 
out of the county fund, and taxed against such offending corporation 
or corporations. The amount of such tax shall be added by the county 
clerk to the railroad company or corporation on the tax-roll against 
such company or corporation, and collected as other taxes are col¬ 
lected against such company. (Id., § 1915.) 

§ 56. It shall be the duty of the county clerk to enter upon the 
tax list, in a separate column for that purpose, headed, “ For the de¬ 
struction of noxious weeds,” an amount equal to the cost of such 
labor as a tax against all lands not public highways upon which such 
noxious weeds are destroyed. (Id., § 7916.) 

§ 57. If the owner or occupant of any such lands, or the over¬ 
seer of any highway, or the board of county commissioners in any 
county of this state, shall fail to comply with any of the requirements 
of this act, they shall be guilty of a misdemeanor: Provided, If any 
county attorney shall fail or refuse to prosecute, then the court in 
which the complaint was brought or pending may appoint some 
reputable practicing attorney to conduct such prosecution, who shall 
in such event receive the fees provided for such cases. (Id., § 7917.) 

§ 58. The county attorney shall be liable under his bond for any 
failure to comply with the provisions of this act. (Id., § 7918.) 

§ 59 . Notices to the owner of the land provided to be given under 
the provisions of this act shall be made in the same manner as sum¬ 
mons in the district court. (Id., § 7919.) 


' * Section 57 of this manual. 




66 


KANSAS ROAD LAWS. 


Hedges. 

§ 60. That owners of real estate in any county in the state of 
Kansas shall keep all hedge fences along the public highway cut and 
trimmed down to not over five feet high, except trees not less than 
sixteen feet apart and hedges necessary as a protection to orchards, 
vineyards, and feed-lots; said feed-lots not to extend more than forty 
rods. All brush cut from said hedges shall be cleaned up and re¬ 
moved or burned. (Id., § 3116.) 

§ 61. All owners of real estate shall cut the weeds in the public 
highway along said real estate, before they go to seed. (Id., § 3117.) 

§ 62. Upon a petition being presented to the county commission¬ 
ers of any county, signed by a two-thirds majority of all the mem¬ 
bers of township boards in said county, they shall by proclamation, 
call an election to be held at a general election for township and 
county officers, and shall submit to the electors the question to adopt 
or reject the law for cutting hedges, and upon the ballots shall be 
written or printed: “ Tor the hedge law; ” “Against the hedgeJ.aw,” 
under the provisions of the general elections law, and the judge of 
election shall count the ballots cast for and against the “hedge and 
weed law,” and make due returns of the same to the county commis¬ 
sioners, as other returns are required by law to be made; that said 
commissioners shall meet within ten days, and with the clerk of the 
county shall proceed to count said votes, and declare the results in a 
proclamation to be published two weeks in some newspaper in general 
circulation in the county in which such proclamation is made. If a 
majority of the votes are for such law, they shall declare said law to 
be in full force and effect, and shall state the day on which the same 
shall take effect, not longer than two weeks from the date of the 
election; and from and after such date, the provisions of this act 
shall be in full force and effect. All laws in conflict with the provi¬ 
sions of this act are hereby repealed. (Id., § 3119.) 

§ 63. Nothing in this act shall be construed as to extend its pro¬ 
visions to any county, until after the election provided for in the pre¬ 
ceding section. (Id., § 3120.) 

§ 64. That whenever any county shall fail to cast a majority of 
its vote for the “ hedge law ” the county commissioners may annually 
thereafter submit the same questions to the electors of their respect- 


COLLATED ROAD STATUTES. 


67 


ive counties, in tlie same manner as provided in section four of this 
act,* and declare the results as herein provided. (Id., § 3121.) 

§ 65. In any county where the provisions of this act shall be 
adopted, any owners of real estate failing to comply with its provi¬ 
sions, it shall be the duty of the road overseer in the district in which 
such real estate is located to give thirty days’ notice to the owner of 
said real estate or his or her duly authorized agent, and upon his or 
her failing to comply with this act, said road overseer shall cut or 
cause to be cut such hedge not more than five feet high, or shall cut 
or cause to he cut said weeds in the public highway along said real 
estate, as is provided in this act; and the cost of cutting said hedge 
or said weeds shall be reported to the county clerk of said county and 
the same entered on the tax-rolls against the said real estate and col¬ 
lected as other taxes of the county are collected, and paid over to the 
treasurer of the proper township. (Session Laws 1905, ch. 363, § 1.) 

RESOURCES FOR IMPROVING AND REPAIRING ROADS. 

Road Labor. 

§ 66. [18]. All male persons between twenty-one and forty-five 

years of age, who have resided thirty days in this state, who are 
capable of performing labor on public highways, and who are not a 
township charge, shall be liable each year to perform two days’ work 
of eight hours each on the public roads, under the direction of the 
road overseer within whose district they may respectively reside, or 
furnish a substitute to do the same, or pay the sum of one dollar and 
fifty cents per day to said road overseer, who shall receipt for the 
same, and expend it in repairs on the public roads within his district; 
and any moneys so received and not expended shall be paid over to 
his successor in office, who shall expend the same as above provided. 
(Gen. Stat. 1901, § 6033.) 

§ 67. [19]. The overseer of highways in each road district shall 

give a notice to persons residing in his district liable to or charged 
with a road tax, of the time and place he will attend and direct the 
work to be performed, as aforesaid. The overseer may direct what 
implements such person shall bring with which to perform such 
work. (Id., §6034.) 


* Section 62 of this manual. 




6S 


KANSAS ROAD LAWS. 


§ 68. [20]. Whenever it shall happen, in consequence of sickness 

or absence from home, or any other cause, that the two days’ work 
aforesaid shall not be performed within the time specified in this act, 
the overseer shall be authorized to require the performance of such 
work at any time prior to the first day of October then next ensuing; 
and in case any person shall neglect or refuse to do the two days’ 
work or furnish a substitute, or pay the said sum of one dollar and 
fifty cents per day, as provided in this act, he shall be deemed guilty 
of a misdemeanor, and shall be fined in the sum of five dollars for 
such refusal so to work, upon conviction before any justice of the 
peace of the township. If any person shall appear at the proper time 
and place as directed by the overseer, and neglect or refuse to do a 
reasonable day’s work, according to his ability, he shall be liable the 
same as if he neglected or refused to appear or furnish a substitute 
or pay the said sum of money as provided herein. (Id., § 6035.) 

Convict Labor. 

§ 69. It shall be unlawful to allow any convict in the peniten¬ 
tiary to perform any labor for private citizens outside of the peni¬ 
tentiary grounds for hire or otherwise, and it shall be the duty of the 
warden to employ the surplus convict labor in extending and repair¬ 
ing the state and county roads, and upon other works exclusively for 
the benefit of the state. (Session Laws 1905, ch. 42, § 5.) 

§ 70. That the board of county commissioners of any county in 
this state may, whenever they may deem it advisable so to do, prop¬ 
erly shackle and work, under such rules and regulations as they may 
from time to time ordain and establish, each and every male prisoner 
committed to the jail of their respective counties for failing to pay 
the fine and costs adjudged against such prisoner on his conviction 
and increased costs, and also any male person failing to pay the costs 
adjudged against him as the prosecuting witness in any criminal pro¬ 
ceeding. (Gen. Stat. 1901, § 5799.) 

§71. That the board of county commissioners may establish a 
county stoneyard, and work male prisoners mentioned in the first 
section of this act at breaking stone for use in macadamizing streets 
and roads, under such rules as they may from time to time ordain 
and establish. (Id., § 5800.) 


COLLATED ROAD STATUTES. 


69 


§ 72. That the hoard of county commissioners of the proper 
county are authorized to sell or dispose of such stone as they may have 
had broken on such terms as they may deem advisable, or in case they 
cannot sell the same, to use the same for the improvement of some 
designated road or street; and on making a sale of such stone, the 
money arising therefrom shall be used to pay for stone delivered at 
the county stoneyard, and the remainder shall be applied to the pay¬ 
ment of the fine and costs standing against the person breaking the 
same. (Id., § 5801.) 

§ 73. In case when a prisoner shall so desire, and shall enter an 
undertaking to the proper county, with good and sufficient sureties, 
to be approved by the county clerk, that he will do a given or, speci¬ 
fied amount of work on some highway designated by the chairman 
of the board of county commissioners of the proper county, and in 
a specified time, in full satisfaction of the said fine and costs charged 
against the said prisoner, the chairman of the hoard of county com¬ 
missioners of the proper county is authorized to accept such under¬ 
taking, and direct the jailer to allow such prisoner to leave said jail 
for the purpose of doing the specified work. Said work may be done 
under the direction and control of some road overseer designated by 
the chairman of the board of county commissioners of the proper 
county; and when said work is done or performed in the manner 
and in the time designated in said undertaking, the chairman of the 
board of county commissioners shall so certify on said undertaking, 
and said prisoner shall then be discharged from all liability for the 
fine and costs for which he was imprisoned: Provided, For any good 
and sufficient reason the chairman of the board of county commis¬ 
sioners may extend the time for doing the work specified in such 
undertaking. (Id., § 5802.) 

§ 74. In case the prisoner entering into the undertaking shall fail 
or neglect to do or perform the work or labor specified in the under¬ 
taking so given by him, the county attorney shall at once proceed to 
collect the amount specified in such undertaking, and no defense, 
except payment or the death of the principal in the undertaking 
during the time in which such principal was to do such work, shall 
be allowed. (Id., § 5803.) 

§ 75. Prisoners shall be allowed one dollar for each day’s work 
performed by them in good faith under the provisions of this act, or 


70 


KANSAS KOAD LAWS. 


if the prisoner prefer, the board of county commissioners may allow 
such prisoner a specified sum per cubic yard for breaking stone. 
The amount so earned by the day or by the cubic yard, when the 
same shall amount to the sum of the fine and costs, the same shall be 
deemed a full satisfaction of the fine and costs in the action for which 
the said prisoner was committed to the jail of the county. (Id., 
§ 5404.) 

§ 76. The county shall not be liable for any costs by reason of the 
provisions of this act, otherwise than as herein provided, nor shall 
this act be construed as limiting the board of county commissioners 
of any county in their right to discharge any person from the jail in 
the manner as now provided by law. (Id., § 5805.) 

Damages Received from Railroad Companies .* 

§77. Whenever, by the construction of any railroad within this 
state, the crossing of any public highway has been or shall be ma¬ 
terially injured, either by excavation or embankments made by said 
railway company or corporation in the construction, of said road, and 
the said railway company have failed to make good the said crossing, 
and continue to fail to do so for the space of ninety days after the 
taking effect of this act, it shall be the duty of the township trustee 
of the proper township to notify the board of county commissioners 
of the fact, stating the location of the crossing, the manner in which 
-the crossing has been injured, obstructed .or destroyed, verified by 
affidavit of at least three of the resident taxpayers of said township. 
Thereupon it shall be the duty of the board of county commissioners 
to appoint three disinterested householders of the county to view the 
said crossing and assess the damages resulting thereto from the con¬ 
struction of said railway, and shall designate the time of meeting, 
and shall notify the railway company by written notice, not less than 
ten days previous to said meeting, to any agent or attorney of said 
railway company, of their action, stating the time and place at which 
the said viewers will meet to view the crossing, and assess the dam¬ 
ages resulting therefrom. (Laws 1876, ch. 105, § 3.) 

§ 78. The viewers appointed under the provisions of the third 
section of this act shall meet on the day designated, and shall, from 


* See 36 Kan. Rep. 628, that this act can apply to only recently constructed railroads. 




COLLATED ROAD STATUTES. 


71 


actual view, assess the amount of damages resulting to the highway 
by the construction of said railway; which amount shall not he in 
excess of the amount of money necessary in their judgment to con¬ 
struct a good crossing, and costs of suit, including the necessary 
approaches thereto, and shall return to the township trustee a cer¬ 
tificate under oath of the amount of damages by them assessed. 
(Laws 1876, ch. 105, §4.) 

§ 79. It shall he the duty of the township trustee, immediately 
upon the filing with him of said certificate, to notify the railroad 
company, by written notice to any agent or attorney of said road, 
of the amount of damages assessed against it, and demand the pay¬ 
ment of the same; and on failure of the company to pay the amount 
so assessed for the period of thirty days thereafter, he is authorized 
to commence an action in any court of competent jurisdiction for 
the recovery of the amount of damages as aforesaid; and the cer¬ 
tificate of the viewers shall be prima facie evidence of the amount 
of damages sustained. (Laws 1876, ch. 105, §5.) 

§ 80. All moneys received under the fifty-fourth section of this 
act shall become a part of the township fund of the township where 
the damage was sustained, and shall be used under the direction of 
the road overseer for making good the damages to the public high¬ 
way, sustained by reason of the building of said railroad. (Laws 
1876, ch. 105, § 6.) 

Township Road Taxes. 

§ 81. Lor the purpose of carrying out the provisions of this 
act,* the commissioners of roads and highways shall recommend to 
the county commissioners of each county in this state, on or before 
the first day of August of each year, a levy of not more than five mills 
on the dollar on all the property in- such township; and it shall be 
the duty of the county clerk to place said levy on the tax rolls of said 
county: Provided, That no provision of this act shall be construed 
to supersede any special act. (Session Laws 1905, ch. 362, § 8.) 

§ 82. [26]. The township treasurers shall receive from the county 

treasurers the road taxes paid within their respective townships. 
(Gen. Stat. 1901, § 6041.) 


*Ch. 362, Session Laws 1905 —Highway Commissioner Law. 




72 


KANSAS. ROAD LAWS. 


Optional Labor or Money Taxes. 

§ 83. All taxes assessed for the purpose of constructing and main¬ 
taining public roads and highways shall be paid in cash, and col¬ 
lected as provided dor in relation to other taxes; and when so col¬ 
lected, the county treasurer shall pay the same to the treasurer of the 
township or city from which said taxes are collected, to be used ex¬ 
clusively for road purposes; unless the commissioners of roads and 
highways shall, when they meet to recommend the levy of the tax 
provided for in this act, adopt a resolution that the same shall be 
paid in work, in which case such tax shall be worked out under the 
direction of the commissioners of roads and highways, as hereinafter 
provided. (Session Laws 1905, ch. 362, § 2.) 

§ 84. Whenever it shall have been determined, as hereinbefore 
provided, that said tax may be paid in labor, the county clerk shall,, 
on or before the first day of January next after said tax shall have 
been levied, furnish to the commissioners of roads and highways, in 
the township in which such tax shall have been levied, a list of all 
taxable real estate and persons, charged with taxes on personal prop¬ 
erty, within their respective townships, and the amount of road tax: 
chargeable to each tract or person. The said tax may then be paid in 
labor under the direction of the commissioners of roads and highways 
of the township in which the property is situated, by any able-bodied 
man at the rate of one dollar and fifty cents per day, and the same- 
amount shall be allowed for a two-horse team and wagon or a team 
and plow. It shall be the duty of the commissioners of roads and 
highways to receipt to each person who performs labor on public 
highways, in their township, under the provisions of this act, for the 
amount of labor so performed, and such receipt shall specify the 
land or lands or the persons for which such labor was the payment 
of road tax. Such receipt shall be received by the county treasurer 
in payment of road taxes charged against the lands or persons de¬ 
scribed therein for the year; and all road taxes in townships where 
the same may be paid in labor, as hereinbefore provided, which re¬ 
main unpaid on the 15th day of September shall be returned to the 
county clerk, who shall charge the same against the respective lands, 
lots or personal property on the county tax roll for the current year. 
(Id., §3.) 


COLLATED ROAD STATUTES. 


73 


§ 85 . !Nothing in this act shall be so construed as to prevent the 
requiring of each male resident between the ages of twenty-one and 
forty-five years from performing two days’ labor on the highway, as 
now provided by law. (Id., § 7.) 


EIGHT-HOUR WORKING DAY.* 


§ 86 . That eight hours shall constitute a day’s work for all labor¬ 
ers, workmen, mechanics or other persons now employed or who may 
hereafter be employed by or on behalf of the state of Kansas, or by 
or on behalf of any county, city, township or other municipality of 
said state, except in cases of extraordinary emergency which may arise 
in time of war or in cases where it may be necessary to work more 
than eight hours per calendar day for the protection of property or 
human life: Provided, That in all such cases, the laborers, workmen, 
mechanics, or other persons so employed and working to exceed eight 
hours per day shall be paid on the basis of eight hours constituting a 
day’s work: Provided further, That not less than the current rate of 
per diem wages in the locality where the work is performed shall be 
paid to laborers, workmen, mechanics and other persons so employed 
by or on behalf of the state of Kansas, or any county, city, township 
or other municipality of said state; and laborers, workmen, me¬ 
chanics, and other persons employed by contractors or sub-contractors 
in the execution of any contract or contracts within the state of 
Kansas, or within any county, city, township or other municipality 
thereof, shall be deemed to be employed by or on behalf of the state 
of Kansas, or of such county, city, township or other municipality 
thereof. (Id., § 3827.) 

§ 87 . That all contracts hereafter made on or on behalf of the 
state of Kansas, or by or on behalf of any county, city, township or 
other municipality of said state, with any corporation, person or 
persons, for the performance of any work or the furnishing of any 
material manufactured within the state of Kansas, shall be deemed 
and considered as made upon the basis of eight hours constituting 
a day’s work; and it shall be unlawful-for any such corporation, per¬ 
son or persons to require or permit any laborer, workman, mechanic 
or other person to work more than eight hours per calendar day in 


* This act is constitutional: In re Dalton « K- 257. And it applies to Work on the 

public highways in working out poll tax. In re Astiby , bu *.an. iui. 






74 


KANSAS ROAD LAWS. 


doing such work or in furnishing or manufacturing such material, 
except in the cases and upon the conditions provided in section 1 of 
this act. (Id., § 3828.) 

§ 88 . That any. officer of the state of Kansas, or any county, city, 
township or other municipality of said state, or any person acting 
under or for such officer, or any contractor with the state of Kansas, 
or any county, city, township or other municipality thereof, or other 
person violating any of the provisions of this act, shall for each offense 
be punished by a fine of not less than $50 nor more than $1,000, or by 
imprisonment not more than six months, or both fine and imprison¬ 
ment, in the discretion of the court. (Id., § 3829.) 

ROAD DISTRICTS AND ROAD OVERSEERS. 

§ 89 . The commissioners of roads and highways shall have au¬ 
thority to divide their respective townships into not more than four 
road districts, with power to change the number and boundaries of the 
same not to exceed four in number, and shall appoint one road over¬ 
seer for each district; and they are hereby authorized to appoint one 
or more road overseers, as necessity may require, who shall serve for 
a term of two years, unless discharged for cause by said commission¬ 
ers of roads and highways, and shall receive a salary of two dollars 
per day for each day’s actual service, for as many days each year as 
said commissioners may direct. (Session Laws 1905, eh. 362, parts 
of §§ 5 and 1.) 

§ 90 . The duties of the township trustee shall be: . . . Fifth, 
to cause a record to be made, accurately defining the boundaries and 
number of each road district, as well as all alterations made in such 
road district or districts, in his township, and the number of road 
overseers in each township. (Gen. Stat. 1901, §7778.) 

§ 91 . [16]. Each incorporated city of more than six hundred in¬ 

habitants shall constitute a separate road district, and the corporate 
authorities of such corporation shall have power to appoint a road 
overseer for such corporation, fix his term of office and compensation, 
and remove him from office for any misconduct, and shall require 
him to give bond, with good security, to the proper corporation for 
the faithful discharge of his duties, and for the safe-keeping and 
proper use of any money that may come into his hands, and to dis¬ 
burse the same in the manner directed by the corporation; and such 


COLLATED 140A.D STATUTES. 


75 

overseers shall do and perform all the duties in the same manner and 
under the same instructions and limitations as are provided for the 
government of overseers in this act, except as herein otherwise pro¬ 
vided ; and the said corporate authorities of any such city are author¬ 
ized and empowered to use the two days’ work provided for in this 
act, or the money paid by persons in the discharge of the same, in 
paving, macadamizing or grading the streets or alleys in such city in 
any manner provided by ordinance or resolution of any such corpo¬ 
ration : Provided, Such work or money shall he applied first to the 
most public streets not macadamized or graded, and that the work 
required to be done as provided for in this act shall be done between 
the 1st day of April and the 1st day of October of each year; and any 
such city shall have the power to pass any by-law or ordinance neces¬ 
sary to carry out fully the provisions of this act. (Id., § 6031.) 

TOWNSHIP COMMISSIONERS OF HIGHWAYS.* 

Created. 

§ 92 . The township board, consisting of the township trustee, 
clerk and treasurer of each municipal township of this state, shall 
be and the same are hereby made commissioners of roads and high¬ 
ways of their respective townships; and all roads shall be under the 
direct control of the township commissioners of roads and highways 
except incorporated cities of more than 600 inhabitants; and they are 
hereby authorized to appoint one or more road overseers as necessity 
may require, who shall serve for a term of two years unless discharged 
for cause by said commissioners of roads and highways, and shall re¬ 
ceive a salary of two dollars per day for each day’s actual service for 
as many days each year as said commissioners may direct. (Session 
Laws 1905, ch. 362, §1.) 

Powers and Duties. 

§ 93 . Said commissioners of roads and highways shall have entire 
control and general supervision of all roads and highways in their 
respective townships; and all tools, implements and road machinery, 
together with all materials for the construction of culverts and bridges, 
shall be purchased by the commissioners of roads and highways. And 

* Because of the principles announced by the Supreme Court in The State v. 
Guiney 55 Kan. 532, and in The State v. Sholl, 58 Kan. 507, as well as some other 
principles of constitutional law, I have had serious doubts as to the constitution¬ 
ality of this law. But I have concluded that humble folk, like the editor of this 




76 


KANSAS ROAD LAWS. 


such commissioners are hereby empowered to let by contract to the 
lowest responsible bidder any road work in their township where they 
deem it advisable to do so, after first having given due notice of the 
letting of such contracts: Provided, however, That said commission¬ 
ers, or any of them, shall not be financially interested in any said con¬ 
tract. (Session Laws 1905, ch. 362, §4.) 

§ 94 . The board of commissioners of highways, mentioned in this 
act, shall each receive for their services the sum of two dollars per day 
for the time actually and necessarily spent by them as such commis¬ 
sioners. (Gen. Stat. 1901, § 7829.) 

Powers and Duties as to Fire-guards. 

§ 95 . The board of commissioners of highways in each township 
in counties in Kansas having a population of less than five thousand 
are authorized to establish and maintain fire-guards in their respective 
townships for the purpose of preventing the spread and incursion of 
prairie fires therein, whenever a petition signed by a majority of the 
qualified electors of their respective townships shall be presented to 
them requesting them to establish fire-guards; and they shall alter, 
change or annul any fire-guards so established when requested to do 
so by a petition signed by a majority of the qualified electors of their 
respective townships. (Id., § 3141.) 

§ 96 . The fire-guards, when practicable, shall be made upon the 


modest work and the people he advises, are not bound to guess in advance what 
the Supreme Court will decide; that the Legislature having enacted a law, the 
only safe course for common folk is to act upon the assumption that it is valid; 
leaving greater personages to question its validity. So I have inserted the act of 
1905. If I am in error in treating it as valid, the Supreme Court will in due time 
rectify my error. The law is a good one, and I hope to see it sustained; but for 
the time being, at any rate, inferior executive officers should treat it as law. 

Treating it as law, there comes the embarrassing auestion — What does it 
repeal ? The old law related to both a board of township highway commissioners 
and a township auditing board. This law relates to a board of highway commis¬ 
sioners alone. It does not, therefore, cover the entire subject-matter (State v. 
Studt, 31 Kan. 245; State v. Guiney , 55 Kan. 532; Gilbert v. Craddock, 67 Kan. 
346) ; and, hence, cannot be regarded as a repeal by substitution. We must treat, 
it as a repeal by implication as to particular sections and particular provisions. 
And it does not affect at all the law as to township auditing boards, for it does 
not relate to that subject. It does, however, repeal the former law as to township 
highway commissioners entirely, for it is plainly intended to be the only law on 
that subject. I have proceeded on the ideas just advanced in leaving in or omit¬ 
ting previous provisions. Only future decisions of the Supreme Court can deter¬ 
mine the wisdom or unwisdom of my course. I am compelled to choose some 
course.— The Editor. 



COLLATED ROAD STATUTES. 


i i 

highways along such section lines as may be considered best, and 
shall consist of two plowed strips six feet wide along the sides of the 
public highways, but upon the same, with the vegetation between 
such plowed strips burned off during the fall of the year, if deemed 
advisable: Provided , however, That fire-guards may be located upon 
any other land whenever the consent of the owner or owners thereof 
may be obtained without any compensation. (Id., § 3142.) 

§ 97 . The board of commissioners of highways of any two town¬ 
ships may arrange to jointly establish and maintain a fire-guard 
along the boundary line between such two townships. (Id., § 3143.) 

§ 98 . In addition to the duties already imposed upon them by 
law, the road overseers in each township where this act shall apply 
shall, between the 1st day of May and the 1st day of October of each 
year, cause to be plowed the two strips of land as set forth in section 
2 of this act, upon all fire-guards established and located within 
their respective road districts, and shall cause to be plowed one strip 
on all fire-guards located upon the line which divides their district 
from some other road district ; and thereafter, during the summer, 
when so directed by the board of commissioners of highways of 
their townships, shall cause said strips of land to be cultivated or re¬ 
plowed, so as to practically keep such strips free and clear of all 
vegetation ; and during the fall of the year, when so directed by 
said board, shall burn off the grass and vegetation between such 
plowed strips. (Id., §3144.) 

§ 99 . The road overseer in each township where this act shall 
apply may require each person subject to perform two days’ labor 
upon the public highways (generally known as a poll tax) to per¬ 
form such labor upon the fire-guards, and two days’ labor so per¬ 
formed shall be in full satisfaction of such person’s poll tax for that 
year. (Id., §3145.) 

§ 100 . Under the direction of the board of commissioners of high¬ 
ways, the road overseer may employ such additional help as may be 
required in order to make and maintain fire-guards as herein pro¬ 
vided, and shall keep in a book to be provided by said board a full 
and complete list of all persons doing work upon fire-guards, par¬ 
ticularly the name of each person, the number of days he worked, 
and the date when and the place where-the work was performed ; 
and shall make an abstract thereof, certified under oath, and shall 
file the same with the township clerk. (Id., §3146.) 


78 


KANSAS HOAD LAWS. 


§ 101 . At the regular meeting of the township auditing board 
thereafter, if the statements of the road overseer are found to be 
true, the board shall audit the same, and allow to each person who 
has performed such labor pay therefor at the rate of not to exceed 
one dollar and fifty cents per day for each person, and three dollars 
per day for each person and team, and shall draw warrants therefor 
upon the township treasurer, to be paid out of the general funds of 
such township. (Id., §3147.) 

GOOD-ROADS LAW. 

§ 102 . For the purpose of building and improving public roads 
and highways under the provisions of this act, the several counties 
of the state of Kansas having a population of more than eight thou¬ 
sand shall be declared road districts, and the county commissioners 
may by proclamation submit to the legal voters of their respective 
counties, at a general election for county and township officers, a 
proposition to adopt or reject the law to levy a tax of not more than 
two mills on the dollar, for a period of not less than five years, upon 
all of the real, personal and mixed property within their respective 
counties, and upon the ballots shall be printed : “For the good-roads 
tax levy,” “Against the good-roads tax levy,” under the provisions 
of the general election law, and the judges of the election shall count 
the ballots cast for and against the good-roads tax levy, and make 
due returns of the same to the county commissioners as other returns 
are required by law to be made; that said commissioners shall meet 
within ten days, and, with the clerk of the county, shall proceed to 
count said votes, and declare the results in a proclamation to be pub¬ 
lished two weeks in some newspaper in general circulation in the 
county in which such proclamation is made. If a majority of the 
votes cast on the good-roads proposition are for such law, they shall 
declare said law to be in full force and effect, and shall state the 
day on which the same shall take effect, not longer than two weeks 
from the date of the election, and from and after such date the pro¬ 
visions of this act shall be in full force and effect. (Gen. Stat. 1901, 
§ 6063.) 

§ 103 . Nothing in this act shall be construed so as to extend its 
provisions to any county until after the election provided for in the 
preceding section. (Id., § 6064.) 

§ 104 . That whenever any county shall fail to cast a majority of 


COLLATED ROAD STATUTES. 


79 


its votes on said proposition for the good-roads tax levy, the county 
commissioners may annually thereafter submit the same question to 
the electors of their respective counties, in the same manner as pro¬ 
vided in section 1 of this act, and declare the results as herein pro¬ 
vided. (Id., § 6065.) 

§ 105 . The county commissioners of the several counties of Kan¬ 
sas shall have full and exclusive control of the construction and im¬ 
provement of all public roads and highways built or improved under 
the provisions of this act, and they are hereby authorized to purchase 
all machinery, tools, and materials, employ all labor, superintendence 
and engineering necessary to construct or improve any such roads or 
highways, and to pay for the same from the funds provided for under 
the provisions of this act. (Id., § 6066.) 

§ 106 . A majority of the resident property owners of the property 
abutting on any public road or highway or proposed road or highway 
in any county within the state may present to the county commis¬ 
sioners of their respective counties a petition setting forth that the 
petitioners are actual residents and owners within their respective 
counties, and that they desire such highway or section thereof to be 
constructed or improved under the provisions of this act. (Id., § 6067.) 

§ 107 . Upon presentation of such petition, the board of county 
commissioners shall investigate and determine whether the road 
sought to be constructed or improved is of sufficient public character 
as to come within the purpose of this act; and if the county commis¬ 
sioners shall determine that the highway to be constructed or road 
to be improved is of sufficient public character to come within the 
purpose of this act, they shall direct the county surveyor to map the 
road, both in outline and profile, and to make his report to them as 
to the kind of material most available for the construction or im¬ 
provement of said road or highway, and to furnish an estimate of 
the cost of construction or improvement of such road or highway, 
and to furnish said county commissioners with certified copies of such 
maps, plans, and specifications, together with said estimate of the 
cost, within sixty days from the filing of said petition, and said county 
surveyor shall be paid a sum therefor not greater than that already 
allowed by law to the county surveyor for like services. (Id., § 6068.) 

§ 108 . Upon receipt of the report of the county surveyor, as pro¬ 
vided in section 6, a majority vote of the county commissioners shall 
adopt a resolution that such public highway shall be constructed or 


80 


KANSAS ROAD LAWS. 


said public road improved under the provisions of this act as soon as 
practicable. (Id., § 6069.) 

§ 109 . The improved or permanent roadway of all roads or high¬ 
ways constructed or improved under the provisions of this act shall 
not be less than eight nor more than sixteen feet in width, unless for 
special reasons, stated by such county surveyor, a greater width shall 
be necessary. (Id., § 6070.) 

§ 110 . For the purpose of defraying the expense of the construc¬ 
tion or improvement of said roads and highways, the county commis¬ 
sioners of the several counties are hereby authorized and empowered 
to levy and collect annually, on all the taxable property of said 
county, a tax not exceeding two mills on the dollar, and the amounts 
paid by each township of the tax voted by the county shall be cred¬ 
ited to the township paying the same, and set aside and used exclu¬ 
sively for road purposes in that township. The amounts collected 
from property in incorporated cities and from railroad companies, 
irrespective of location in said county, shall be credited to a general 
county road fund, and said fund shall be used : First, in the purchase 
of all machinery necessary for the economical prosecution of the 
work contemplated by this act; second, for surveys, maps, and esti¬ 
mates, but no greater sum shall be paid therefor than that allowed 
by law to the county surveyor for like services ; third, the balance of 
such tax shall be annually divided by the county commissioners be¬ 
tween the several townships according to the value of the roads con¬ 
structed or being constructed or improved under the provisions of 
this ( act. (Id., § 6071.) 

§ 111 . It shall be the duty of the county commissioners, where 
the roads have been constructed under the provisions of this act, to 
apportion to the real estate situated within one-half mile of said road 
or highways, irrespective of improvements, fifteen per centum of the 
cost of such improvement. 

All acts or parts of acts in conflict with the provisions of this act 
are hereby repealed. (Id., § 6072.) 

TOWNSHIP TRUSTEES TO ENFORCE ROAD LAWS. 

§ 112 . The township trustee shall prosecute in the name of his 
township all violations of the different road laws, or any provisions 
thereof; and in such prosecution it shall be the duty of the county 
attorney to act on behalf of the township. (Id., § 7783.) 


COLLATED ROAD STATUTES. 


81 


GENERAL DUTIES, POWERS AND COMPENSATION OF ROAD OVERSEERS.* 

§ 113 . The duties of road overseer shall be such as are and may 
be prescribed by law. (Id., § 7798.) 

§ 114 . Each road overseer shall before entering upon the duties 
of his office execute a bond to the State of Kansas in a sum not less 
than double the amount of money which will probably come into his 
hands at any time during his term of office, with two or more sure¬ 
ties, the amount and the sufficiency of the bond to be approved by 
the township trustee, conditioned for the faithful discharge of the 
duties of his'office, which bond shall be by him forthwith filed in the 
office of the county clerk. The approval of such bond shall be in¬ 
dorsed thereon by the township trustee. (Id., § 7777.) 

§ 115 . It shall be the duty of each and every road overseer to 
open or cause to be opened all county and state roads and highways 
which have been or may hereafter be laid out or established through 
any part of the district assigned to such overseer, first giving notice 
to the owner or owners, or their agent or agents, if residing in 
the county, or, if such owner be a minor, idiot, or insane person, 
then to the guardian of such person, if a resident of the county, 
through whose inclosed or cultivated lands such road is laid out or 
established, notifying such owners aforesaid to open said road through 
their lands within ninety days after service of such notice; and if 
the person or persons so notified do not open such road within the 
time named in such notice, it shall be lawful for such overseer or 
any person under his direction to enter upon said lands and open 
said road: Provided , If such notice be given between the 1st day 
of March and the 1st day of October, the notice shall designate the 
1st day of January next as the time of opening such road. And 
the overseer shall keep the same in repair, and remove or cause to 
be removed all obstructions that may be found therein; for which 
purpose the road overseer is hereby authorized to enter upon any 
uncultivated land unincumbered by a crop near or adjoining the 
public road, to dig and carry away any gravel, sand or stone, and to 
purchase any timber which may be necessary to improve or repair 
said road, and to enter upon any land adjoining or lying near to 
said road, to make such drains or ditches through the same as he 
may deem necessary for the benefit of the roads, doing as little 

* The overseer should read all the foregoing statutory provisions, where additional powers and 
duties will be found which are not repeated under this topic. 




82 


KANSAS ROAD LAWS. 


damage to said lands as the nature of the case and the public good 
will permit; and the drains and ditches thus made shall be kept open 
by the overseer, if necessary, and shall not be obstructed by the 
owner or occupants of said land or by any other person, under the 
penalty of being fined not exceeding ten dollars for each offense, be¬ 
fore any justice of the peace in the county. The owner of any 
gravel, sand or stone so taken, or of the land through which ditches 
or drains may be made, as herein provided, or the owner of the 
crops thereon, shall be allowed a fair and reasonable compensation 
for the material so taken or for any injuries his lands or crops may 
sustain in consequence of the making of said drains or ditches; the 
same to be allowed and paid by the board of county commissioners 
of the county in which the road so improved is located. Such claims 
shall be allowed and paid in the same manner as other ordinary 
claims against the county, and the claimant shall have the same right 
of appeal as is now provided by law in other cases. (Id., § 6027.) 

§ 116 . That where a road is located on a county or civil township 
line, and by reason of any impediment, either natural or otherwise, 
any portion of such road suffers a deflection from such line not ex¬ 
ceeding forty rods parallel distance, then for the purpose of improve- 
.ment such road shall be deemed to be wholly on such line. (Id., 
§ 6050.) • 

§ 117 ., All expenses, either in money, material or labor, arising 
from the improvement of any portion of such road, shall be borne 
jointly by the counties or townships contiguous thereto, as the case 
may be’. (Id., § 6051.) 

§ 118 . All road overseers shall make full, itemized and sworn re¬ 
ports to the commissioners of roads and highways on the last Monday 
of April and October in each year, reporting all work done by them, 
days worked, giving dates of same, of moneys collected by tliem, how 
expended, and all information said commissioners of roads and high¬ 
ways may require; and for failure to make said report, or any neg¬ 
lect of duty, said commissioners of roads and highways may discharge 
such road overseers: Provided, That no road overseer shall incur any 
obligation not authorized by the board. (Id., § 5.) 


COLLATED ROAD STATUTES. 


83 


§ 119 . The township auditing hoard shall annually, on the last 
Monday of October in each year, settle with and audit the accounts of 
the township treasurer and of all road overseers in the township, for 
all moneys disbursed by them; and the township clerk shall record 
at length such accounts on the township record. (Id., §7780.) 



t 



4 



PART II. 


I 

FORMS AND RECORD ENTRIES. 
















FORMS AND RECORD ENTRIES. 


ROAD PETITION. 

To the honorable the Board of County Commissioners of the County of . : 

The undersigned respectfully petition your honorable body to lay out, establish and 
open to public travel in said county a public road, as follows: [Insert a description 
of the proposed road, giving the beginning, intermediate points, if any, and course, 
sufficiently full and clear to enable a practical surveyor to run it,] and we respectfully 
represent that each of us is a householder of said county, residing in the vicinity 
where said road is proposed to be laid out, and that said road, if so laid out, will be of 
public utility. 


State op Kansas,.*..County, ss. 

.'.. one of the above petitioners, being by me first 

duly sworn, deposes and says that each of the persons whose names are signed to the 
foregoing petition, including affiant, resides in the vicinity where said road is proposed 
to be laid out, is of the full age of twenty-one years, and occupies a house in said 
vicinity, in said county, as a place of residence, and not as a boarder or lodger, and is 
a householder of said county; and that the signatures to the said petition are the gen¬ 
uine signatures of the said several petitioners, made personally by themselves, re¬ 
spectively. 

Subscribed and sworn to before me, this.day of.. A. D. 19.. 

[seal.] . 

County Clerk. 


BOND. 

I 

[ Name all the petitioners] as petitioners, being about to present to the board of 

county commissioners of the county of.. in the State of Kansas, their 

certain petition signed by them, praying said board to [establish, alter, vacate, or re¬ 
locate, as the case may be,] a certain road in said county, described in said petition as 

follows: [Describe the road.] Now, therefore, we,. 

.as principal.., and. 

.as suret.., do hereby bind 

ourselves firmly by these presents, and do promise to pay to the State of Kansas, 
for the use of said county of.. the amount of all costs 


( 87 ) 





























88 


KANSAS KOAD LAWS. 


and expenses that may accrue on or in the proceedings upon and under said petition, 
in case the proceedings had in pursuance of said petition shall not be finally confirmed 
and established: Provided , however , And this obligation is upon this express condi¬ 
tion, to wit: that if the said above-named petitioners shall, in case the said proceed¬ 
ings had in pursuance of said petition shall not be finally confirmed and established, 

themselves pay into the treasury of the said county of.the amount 

of all said costs and expenses when and if the same shall become due and payable by 
them, then this obligation to be void; otherwise to be and remain in full force and 
effect. 

Witness our hands, this.day of.. A. D. 19.. 


This bond is hereby approved by the board of county commissioners of the county 

of... ,.. in regular session, this.day of.. A. D. 19.. 

By order of the Board. 

. Chairman . 

County Clerk . 


ORDER UPON PETITION 

Came this day.. principal petitioner therein, and pre¬ 

sented to the board of county commissioners a certain petition, which was in words 
and figures as follows, to wit: [Here copy petition and signatures in full,] and upon 
examination and consideration thereof the said commissioners do find that the said 
petition is a legal one ; that the signatures thereto are genuine ; that the said petition¬ 
ers whose names are signed to said petition all reside in the vicinity where said road 


is to be.; and all are householders of. 

county; and that.. one of said petitioners, has duly entered 


into a bond, with security satisfactory to and approved by said commissioners, payable 

to the State of Kansas for the use of said.county, conditioned 

that the persons signing the said bond shall pay into the treasury of the said county 
the amount of all costs and expenses accruing on said.in case the pro¬ 

ceedings had in pursuance of said petition shall not be finally confirmed and estab¬ 
lished ; and it is, therefore, by the said board of county commissioners — 

Ordered , That the county commissioners act as [or, that.and 

.and.. who are disinterested householders 

of said county, be and they are hereby appointed] viewers of the said road so by said 

petition prayed to be...,* and that the county clerk do forthwith 

notify each of the said viewers in writing of their said appointment, and of when 
and where they are to meet. And it is further 

Ordered , That the county commissioners [or, the said viewers] shall meet at 
[describing place on line of proposed road where they are to meet] on the.... day 

of.. 19.., at-o’clock..M., and proceed to the discharge of their 

duties, and that the county surveyor be and he is hereby ordered and directed to 


* Omit this if the commissioners are to act as viewers. 


LtfC. 




























FORMS AND RECORD ENTRIES. 


89 


meet with them at the said time and place, to survey said road under their direction, 
and that an order be issued to him to that effect. And it is further 

Ordered , That the county clerk, by advertisement set up in his office, and in the 

township, .of.through which township. 

is prayed to be laid out, for at least twenty days, and by publication for two consecu¬ 
tive weeks in the.. a newspaper published in said 

county, the date of the second publication in said newspaper to be not more than 
twenty days before the date hereinbefore fixed for said commissioners [or viewers] to 
meet, shall give notice setting forth that said petition has been presented, giving the 
substance thereof, and that the commissioners [or viewers] will, on the day here¬ 
inbefore designated, proceed to view said road, and to give all parties a hearing. 
And it is further 

Ordered , That a record of said notice so to be given, and as given, by said county 
clerk be by him entered upon the journal of the proceedings of this board. 


ROAD NOTICE . 

To Whom it may Concern: 

In pursuance of an order made by the board of county commissioners, in regular 

session, on the.day of.A. D. 19.., notice is hereby 

given that. 

householders of said county, residing in the vicinity where it is proposed to. 

.the road below mentioned, have presented to said board their certain 

petition, praying the.of a public road, as follows: [Here copy de¬ 
scription from petition], and that [the county commissioners]. 

and., viewers duly appointed, will meet at.. 

on the.day of.. A. D. 19.., at.. .o’clock, .. m., and pro¬ 

ceed to view said road, and to give all parties a hearing. 

Witness my hand, and the seal of said county, affixed at my office in said. 

.county, this.day of.. A. D. 19.. 

[seal.] . 

[The clerk should enter a copy of this notice upon the journal.] 


NOTIFICATION TO VIEWERS OF APPOINTMENT. 

. .. and .: 

You are hereby notified that, by an order of the board of county commissioners of 

the county of., made on the.day of.. 

A. d. 19.., you were duly appointed viewers to view the following road, which has 
been petitioned for, to wit: [describe road,] and you were, by said board, ordered to 

meet at [point fixed,] on the.day of.. A. D. 19. ., at... 

o’clock .. M., at which time and place the county surveyor will meet with you, and 
proceed to the discharge of your duties as such viewers. 

By order of the board. 

Witness my hand, and the seal of said county, this.day of. 

A. D. 19.. 

[seal.] 


County Clerk. 


































90 


KANSAS KOAD LAWS. 


ORDER TO SURVEYOR TO MEET VIEWERS. 

To .. County Surveyor of the County of . 

At a meeting of the board of county commissioners of the county of.. 

on the.day of.. A. D. 19...., the county commissioners decided to 

act as [ or . , and.. were appointed] 

viewers to view a certain proposed road petitioned for, to wit: [describe road,] and 
they will [or said viewers were ordered to] meet for that purpose at [point fixed,] on 

the.day of.. A. D. 19...., at.... o’clock .. m. , and the said 

board directed that an order issue to you directing you to meet with them at said time 
and place. You are therefore directed to meet with said county commissioners [or 
said viewers] at said time and place, and proceed to the discharge of your duties in 


that regard, as provided by law. 

By order of the board. 

Witness my hand, and the seal of said county, this.day of. 

A. D. 19... . 

[seal.] County Clerk. 


NOTICE TO LAND-OWNER- OF VIEW. 

To . 

You are hereby notified that [principal petitioner] and others, being householders 
of said county residing in the vicinity of said proposed road, lately presented to the 

board of county commissioners of the county of.. in the State of 

Kansas, their petition praying that a road might be established as follows : [ de¬ 
scribing the road], which road, if established, will run through certain lands in said 
county owned by you, to wit: [describe his tract generally]; and that at a meeting 

of said board on the.day of.. A. D. 19.., the county commissioners 

of said county decided to act as viewers [ or , viewers were duly appointed] to view 

said road, and decided [or, were ordered] to meet at [point fixed], on the.day of 

.A. D. 19.., at_o’clock,. m., and proceed to the discharge of 

their duties. You will, therefore, take notice of the meeting and proceedings of said 
commissioners [or viewers]. 

.. 19.. One of said Petitioners. 


AFFIDAVIT OF SERVICE. 

State of Kansas,.County, ss. 

.. being first duly sworn, deposes and says that on 

the.day of.. A. D. 19.., he [“delivered personally to 

.,” or, “ left for him at his usual place of residence in said county, 

and with an adult member of his family,”] a notice to the said.. 

of which the within is a true copy. 

Subscribed and sworn to before me, this.day of.. A. D. 19.. 

_ County Clerk. 


WAIVER OF NOTICE. 

.. as principal petitioner, and others, having petitioned 

the board of county commissioners of.county, Kansas, to 

establish a certain road, as follows: [ describe road as in petition,] which proposed 




































FORMS AND RECORD ENTRIES. 


91 


road will run through lands owned by us, or represented by us, respectively, and no¬ 
tice having been published and the county commissioners of said county having de¬ 
cided to act as viewers [or, viewers were appointed] under said petition, we, whose 
names are signed below, hereby waive the service of the written notice required by 
law to be served by petitioners upon land-owners in such cases. 

Guardian of Owner of lots 5, 10, 17. 


. Resident agent of .. 

Minors , Owner of E. % 8. W. M 10 , 12 ,17. 

Owning the N. W.%, Sec . 12 , T. 13 , R. 17. 

AFFIDAVIT. 

State of Kansas,.County, ss. 

.. being by me first duly sworn, deposes and says that the 

several signatures appended to the foregoing waiver of notice are the genuine sig¬ 
natures of the several persons respectively whose signatures they purport to be, and 
were affixed by the parties themselves in affiant’s presence. 


Subscribed and sworn to before me, this.day of.. A. D. 19.. 


County Cleric . 


LAND-OWNER'S APPLICATION TO VIEWERS. 

To County Commissioners of .. County, acting as Viewers 

[or, . 

road viewers appointed] to view the road petitioned for by [principal petitioner] and 

others, beginning [describe beginning of proposed road] and ending. 

in.county in the State of Kansas: 

Said proposed road will, if established, run through and upon the following-de¬ 
scribed premises situate in said county and of which premises I am the owner, to 
wit: [Here describe the tract, quarter-section or otherwise,] and will cause injury 
thereto; and I hereby claim damages and compensation accordingly, and hereby 
apply to you as such viewers to assess, determine and award to me the amount 
of damages to which I am entitled, and which I hereby allege and claim to be 


19 .. Owner of said premises. 


ALIAS ORDER FOR VIEW. 

[If the commissioners or viewers fail to meet on the designated day or the next 
secular day, a new notice must be given, and an order should be made and entered 
accordingly, fixing a new date and ordering notice as in the first instance. If the 
commissioners were to act as viewers and failed to meet, they of course know they 
failed to meet, and the following will be the proper introduction to the journal entry :] 

The county commissioners having decided to act as viewers of the proposed road 
and having failed to meet on the day designated in the order heretofore made and on 
the following day, it is, by the board, 

Ordered, etc. [Here to follow an order like the original for notice, publication, 
























92 


KANSAS ROAD LAWS. 


directing the surveyor to meet with the commissioners, and requiring a record of the 
notice for the new date, precisely in all respects as in an original order.] 

[If viewers have been appointed and they have failed to meet, the order should be :] 

And now comes the said.. principal petitioner 

herein, and shows to the said board of county commissioners that the viewers hereto¬ 
fore appointed to view said proposed road and report thereon did not meet on the day 
designated by the said board, nor on the following secular day; and thereupon, upon 
application of the said petitioner, and the said board being satisfied that the said 
viewers did so fail to meet, it is by said board hereby 

Ordered, That the said. 

and.... heretofore appointed viewers herein, do meet at 

[describing place on line of proposed road where they are to meet,] on the. 

day of., A. D. 19.., and proceed to the discharge of their duties; 

and that the county surveyor be and he is hereby ordered and directed to meet with 
the said viewers at the said time and place, and survey said proposed road under their 
direction, and that an order be issued to him to that effect. And it is further 

Ordered , That the county clerk, by advertisement set up in his office, and in the 

townships of. 

through which township said proposed road is prayed to be laid out, for at least 

twenty days, and by publication for two consecutive weeks in the.. 

a newspaper published in said county, the date of the second publication in said 
newspaper to be not more than twenty days before the date hereinbefore fixed for 
said commissioners [or viewers] to meet, shall give notice setting forth that said 
petition has been presented, giving the substance thereof, and that the commissioners 
[or viewers] will, on the day hereinbefore fixed, proceed to view said road, and 
give all parties a hearing. And it is further 

Ordered , That a record of said notice so to be given, and as given by the said county 
clerk, be entered upon the journal of the proceedings of said board of county commis¬ 
sioners, and the said clerk is hereby ordered and directed to enter the same thereon. 

[The clerk will then give notice and make up his record precisely as if a new peti¬ 
tion had been presented.] 


CERTIFICATE OF VIEWERS IN FAVOR OF ROAD. 

The undersigned, the county commissioners of.county, in 

the State of Kansas, acting as [or, who were by order of the board of county commis¬ 


sioners of.county, in the State of Kansas, made on the. 

day of.. 19.., duly appointed] viewers of a certain road which 


[naming the petitioners] had by their petition prayed might be established, and 
which proposed road was described in said petition as follows: [description of road 
as in petition] duly met with the county surveyor at the beginning of said proposed 
road, as above described, [or wherever the notice fixed for the place of meeting.] on 

the.day of.. 19.., at_o’clock.. m., [if not commissioners, 

and each of us having been first duly sworn as such viewers,] and proceeded to view 
said proposed road, as nearly as prayed for in said petition as a good road can be 
made at a reasonable expense; [and* caused the county surveyor, under our direc¬ 
tion, to survey said road as laid out by us, and to conspicuously mark the same 
throughout, noting the courses and distances;] and having so done, and having taken 


♦Omit this if the county surveyor is not directed to make a survey. See Collated Road 
Statutes, see. 6. 

















FORMS AND RECORD ENTRIES. 


93 


into consideration the utility, convenience and inconvenience, and expense which 
will result to individuals, as well as to the public, if such road shall be established 
and opened, we hereby certif}^ that said road should be established and opened, and 
that the same is necessary and will be of public utility, and we hereby certify in favor 
of the establishment of said road for the following reasons: 

[These, of course, are but suggestions for assigning reasons.] 

First: It is necessary to enable those living in the vicinity thereof to travel to and 
from the county seat of said county, as witnesses or jurors in courts, or on any pri¬ 
vate or public business, or for purposes of traffic. 

Second: It is necessary to enable the persons living in the vicinity thereof, and 
who are electors, to travel to and from the place of voting in tbeir precinct. 

Third: It is necessary to enable the persons living in the vicinity thereof to 
travel to and from the postoffice at which they deliver and receive their mails, news¬ 
papers, etc. 

Fourth: It is necessary to enable the children of the persons living in the vicinity 
thereof to reach the public school-house of their district. 

Fifth: It is necessary to afford John Randolph, living in the vicinity thereof, a 
means of egress from his farm to the public highway, and without said road he has 
no means, but by sufferance of his neighbors, of traveling to and from the county seat 
of said county, to the public school of his district, to the postoffice where his mail is 
delivered and received, nor to the voting-place of his precinct. 

Sixth: Said road will be of public utility, by enabling persons to travel between 
the county seat of said county and the lands through which said road will run; and 
because it connects two other public roads with each other, heretofore disconnected 
in such a way as to deprive many persons of the benefit of either. 

Seventh : Because the expense of establishing said road will not be unreasonably 
large as compared with the convenience and public utility which will result therefrom. 

Witness our hands, this.day of.. A. D. 19... 


Viewers as aforesaid , [or County Commissioners .] 


CERTIFICATE OF VIEWERS AGAINST ROAD. 

[Follow preceding form down to “we hereby certify,” and conclude :] 

We hereby certify that said road should not be established and opened, and that 
the same is not necessary, and will not be of public utility; and we hereby report 
against the establishment of said road, for the following reasons: [Hints as to proper 
mode of assigning reasons.] 

First: Said road is not necessary to enable any person living in the vicinity 
thereof to reach the county seat of said county, his local postoffice, the public school- 
house of his district, nor the voting-place of his precinct, nor his nearest town for 
traffic over a public highway, but said persons can already reach all of said places 
without any serious delay or inconvenience, by traveling entirely over the public high¬ 
way already laid out, established and opened to travel; and no person in the vicin¬ 
ity of said road needs it as a means of egress from his land to an established public 
highway; but every person living in the vicinity of said proposed road already has 
easy egress from his lands immediately to and upon an already opened and traveled 
public highway. 








94 


KANSAS KOAD LAWS. 


Second: While some such road is necessary to the convenience of the people liv¬ 
ing in the vicinity of the proposed road, and would be of public utility, yet the road 
as proposed would involve too great an expense to the county to justify its establish¬ 
ment. 

Third: That while some such road is necessary to the convenience of the persons 
living in the vicinity of said proposed road, and would be of public utility, yet this 
road as proposed will run through [a cemetery or a private burying-ground, or will de¬ 
stroy or needlessly injure a grove, or park, or pleasure-ground,] on the premises of 
John Hancock, which injury to the owner thereof no mere damages can adequately 
compensate, while a road could just as conveniently be laid out that would serve the 
same purpose, and be just as beneficial and of as much public utility, without causing 
any such injury to any person. 

Witness our hands, this.day of.. A. D. 19.. 


[If a marker or chain-carriers have been employed, attach to the report the follow¬ 
ing certificate before the place for signing the report:] 

We further certify that, before proceeding with said view and survey, we deemed 

necessary to take, and did take, to our assistance.and.. 

two suitable persons, as chain-carriers, and.. also a suitable person, 

as marker, and that each of said persons was, under our direction, necessarily and ac¬ 
tually employed in said view and survey.days, for which they are severally en¬ 

titled to compensation. 


SEPARATE CERTIFICATE AS TO ASSESSMENT OF DAMAGES. 
[Follow Certificate of Viewers in Favor of Road down to “We hereby certify,” 
and proceed: ] now file our certificate thereon, and, together therewith, hereby make, 
file and submit our separate certificate of the damages assessed by us to the land-owners 
through whose lands said proposed road will run if established; and we hereby certify 
that we assessed such damages upon all applications made to us in writing, and we 
submit herewith the written applications upon which said assessments were made by 
us. We so assessed damages as follows : 

Dolls. Cts. 

In favor of. 

it ii 

a a 

an 
< t a 

Total damages as assessed. 

Witness our hands, this.day of.. A. D. 19.. 


County Commissioners, [or Viewers as aforesaid .] 


FINAL ORDER IN FAVOR OF ROAD. 

This day the petition of. 

for the establishment of a road as follows: [copy description from petition,] came on 
to be further heard upon the certified return of the survey thereof, the plat, the certifi- 







































FORMS AND RECORD ENTRIES. 


95 


cate of the county commissioners acting as viewers, [or the viewers,] and their separate 
certificate of the damages assessed by them ; and the said return, plat and reports hav¬ 
ing all been duly filed with the county clerk heretofore, and having been received by 
the board of county commissioners, and said board having considered the same, and 

having concluded that said road should be.. and no legal objection 

against the same appearing, and the said board being satisfied that said road will.be 
of public utility, it is, by said board of county commissioners 

Ordered , That said road, survey and plat be duly recorded; and that said road 
shall be henceforth considered a public highway. And it is further 

Ordered , That the trustees of. 

townships, respectively, in which townships said road is located, be and they are 
severally and respectively ordered and directed to cause said road within their respec¬ 
tive townships to be opened for public travel; and that an order to this effect be issued 
to each of said trustees. 


FINAL ORDER AGAINST ROAD. 

This day the petition of. 

for the establishment of a road as follows: [copy description from petition,] came 
on to be further heard upon the certified return of the survey thereof, the plat, the 
certificate of the county commissioners [or viewers,] and their separate certificate of 
the damages assessed by them, and the said return, plat and certificates having all 
been duly delivered to and filed by the county clerk heretofore, and having been re¬ 
ceived by the board of county commissioners, and said board having considered the 
same, and having concluded that such road, as applied for, is unnecessary, it is by 
the said board of county commissioners 

Ordered , That no further proceedings shall be had upon said petition. And it is 
further 

Ordered , That the county clerk do demand and collect of the obligors in the bond 
given by the principal petitioner herein the full amount of all costs accrued by reason 
of the view of said road; and upon neglect or refusal of said obligors so to pay, the 
county clerk shall proceed to collect the said costs by action upon said bond, and 
when collected, with or without action, the county clerk is ordered to pay said costs 
into the county treasury of said county. 


ORDER TO TOWNSHIP TRUSTEE TO OPEN ROAD. 

T 0 .. Trustee of . Township, in the 

County of. .•* 

At a meeting of board of county commissioners, on the.day of 

... A. D. 19.., the following road, [describe road,] for which 

.. principal petitioner, and others, had petitioned, was 

established; and it was by said board thereupon ordered that an order issue to you as 
trustee, directing you to cause said road, so far as the same lies in your township, to 
be opened to public travel: Now, therefore, 

You, the said 


, as trustee aforesaid, are hereby ordered 














96 


KANSAS KOAD LAWS. 


and directed to cause the above-described road, so far as it lies in your said town¬ 
ship, to be duly opened to public travel. 

By order of the board of county commissioners. 

Witness my hand, and the seal of said county, this.day of..'.. 

A. D. 19.. . 

[seal.] County Clerk. 


ORDER OF TRUSTEE TO OVERSEER TO OPEN ROAD. 

To .. Road Overseer of Road District No. .. Township: 

The board of county commissioners having ordered me, as trustee, to cause the 
following road, recently established, to wit: [describe road,] so far as it lies in 

said.township, to be opened to public travel, you are therefore 

directed to open to public travel, as provided by law, so much of said road as lies 

within your district. . 

.. A. D. 19.. Township Trustee. 


OVERSEER'S NOTICE. 


To .: 

The road petitioned for by [principal petitioner,] and others, and which runs 
through a portion of your lands, to wit: [describe the tract of land the party owns, 

and through which the road runs,] situated in.township, 

.county, Kansas, was on the.day of.. 

A. D. 19.., duly established by the board of county commissioners of said. 

.county, and said board has ordered the trustee of said township 

to cause said road to be opened to public travel. You are therefore notified to open 
said road through your said lands, as surveyed and marked by the county surveyor of 
said county, under the direction of the eounty commissioners acting as [ or the\ viewers 
of said road, within ninety days from the service hereof [or, on or before the first day 
of January next], or it will become my duty to enter, or to depute some one to enter, 
upon said lands and open said road. 

Witness my hand, this.day of.. A. D. 19... 

.. Road Overseer 

of District No .. of . Township .. County. 


RECEIPT OR CERTIFICATE FOR MATERIAL TO REPAIR ROADS 

AND BRIDGES. 

State of Kansas, .County, .Township, ss. 

I, the undersigned, road overseer of road district No.. in said township, 

hereby certify that 1 did, on the.day of.. for the purpose of re¬ 
pairing a.in the road in said district, take away the following-described 

and valued material belonging to one.. to wit: 

Description and quantity of material [give items] :. 


Value thereof: $ 


Road Overseer. 





































FORMS AND RECORD ENTRIES. 


97 


REPORT OF ROAD OVERSEER, TO BE MADE ON TRIE LAST MON¬ 
DAY IN APRIL AND THE LAST MONDAY IN OCTOBER, EACH 
YEAR. 

To the Commissioners of Roads and Highways of . 

Township of . County, Kansas: 


REPORT OP., AS ROAD OVERSEER OP.DISTRICT IN SAID TOWNSHIP. 


I,., the said Road Overseer, report, that since 

the date of my last report, to wit,., I have, as such 

overseer, done work as shown by the dates given below; that I have collected 
and expended money as shown below; and I hereby certify that in the follow¬ 
ing report I have correctly given all other information you have required of 
me. 

Work Performed by Me. 


Days worked.. 
Dates of work: 
January 
February... 

March. 

April . 

May. 

June. 

Due for above, 


July. 

August.... 
September 
October... 
November. 
December. 


Moneys Collected. 


Date. 

Source. 

For What. 

Amount. 










How Expended. 


Date. 

To Whom. 

For What. 

Amount. 










Other Information Required by Board. 


State of Kansas,.County, ss. 

I .. Road Overseer for the 

.District of.Township, of 

.County, Kansas, being duly sworn, depose and 

say that the foregoing is a full, itemized report of all work done by me since 

my last report, to wit, since.. 190.., with the dates 

of said work, and of all moneys collected by me and how expended; and con¬ 
tains all information otherwise required of me by the Board of Commissioners 
of Roads and Highways of said township, correctly stated and set forth. 

Subscribed and sworn to before me, this.day of., 19... 


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